Legislative reform for the Welsh marine environment

Legislative reformfor the Welshmarine environmentA report to WWF Cymru

Marine and Coastal Environment Group

Cardiff University

June 2004

All rights reserved. All material appearingin this publication is subject to copyrightand may be reproduced with permission.Any reproduction of this publication in full orin part must credit WWF-UK as the copyrightholder.

The views of the author expressed in thispublication do not necessarily reflect thoseof WWF.

The authors have used all reasonableendeavours to ensure that the content of thisreport, the data compiled, and the methodsof calculation and research are consistent withnormally accepted standards and practices.However, no warranty is given to that effectnor any liability accepted by the authors forany loss or damage arising from the use ofthis report by WWF-UK or by any otherparty.

RESEARCH TEAM

Authors: Iwan Ball (Part A)Hance Smith (Part B)

Project Coordinators: Hance SmithRhoda Ballinger

Researchers: Iwan BallEvangelia MoutselouChristine Marsh

Marine and Coastal Environment Group(MACE)School of Earth, Ocean and PlanetarySciencesCardiff University, Main BuildingPO Box 914, Cardiff CF10 3YETel: 029 2087 4830Fax: 029 2087 4326www.earth.cardiff.ac.uk

Acknowledgements

The research team wish to thank the staff ofWWF Cymru for their support and theirvaluable comments on the draft report.

The cooperation of the numerous stakeholderswho participated in interviews and in theworkshop is also gratefully acknowledged.

Maps and figures were produced with theassistance of Alun Rogers, Cartographic Unit,School of Earth, Ocean and PlanetarySciences, Cardiff University.

For further information, please contact:

WWF CymruBaltic HouseMount Stuart SquareCardiff CF10 5FHTel: 029 2045 1306Fax: 029 2045 4971E-mail: cymru@wwf.org.uk

WWF-UKPanda HouseGodalmingSurreyGU7 1XRTel: 01483 426444Fax: 01483 426409www.wwf.org.uk

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Executive Summary

CONTEXT

The planning and management of the Welsh marine environment, in common with all UKwaters, are entering a new phase of development. In a legal and political context, the mostsignificant changes relate to the increasing importance of European measures and theirincorporation into national law, along with the devolution process and transfer of powers to theNational Assembly for Wales (NAW).

With the NAW having recently completed its first term of office, it is timely to investigatewhether existing legislative powers in Wales need to be reviewed in order that the NAW is ableto meet its statutory commitment to sustainable development and ensure effective managementof marine and coastal resources. This report, along with the accompanying series of 12 sector-specific topic papers, reviews the key pieces of international, European, national and NAWlegislation that apply to the Welsh marine and coastal environment. The major shortcomingsand problems arising from the sectoral legislation and regulatory procedures are identified, andoptions for reform of the current legislative framework are outlined.

STRUCTURE OF REPORT

This report is divided into two sections. The first (Part A) is a Discussion Document whichaddresses the sources of jurisdiction in the Welsh marine environment and the organisationsinvolved in its management. The key issues and shortcomings of the existing legislativeframework are identified and a range of statutory and non-statutory options/optionalcomponents are discussed which could strengthen the legislative basis for the improvedmanagement and planning of the Welsh marine environment. The second section (Part B) is thereport of the stakeholder workshop undertaken as part of the second phase of the study. Theworkshop was informed by the Discussion Document and the 12 topic papers which address thelegislation affecting each sector.

KEY ISSUES RELATING TO THE LEGISLATION

• Although the NAW has some powers to make secondary legislation for the Welsh marineenvironment, it cannot pass primary legislation and does not have any exercisable powersbeyond 12nm. Important exclusions from the NAW�s remit include merchant shipping, oiland gas, and defence.

• Some of the more significant planning decisions are reserved by Westminster, whicharguably dilutes the NAW�s commitment to sustainable development.

• The tendency to develop ad hoc solutions to problems has resulted in a sectoral approach tothe management of the Welsh marine environment.

• There appears to be little vertical or horizontal integration between the legislation, whichhas arguably led to fragmented control of the Welsh marine environment.

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• The complexity of the plethora of regulations has inevitably resulted in omissions andoverlaps in the marine legislative framework, some of which may be attributed to limitedreference to the coast or marine environment within more terrestrially focused legislation.

• Much of the legislation governing some sectors (e.g. inshore fisheries) has been in place formany years and may no longer be fit for purpose.

• However, the sectoral approach to legislating is well-established and understood. Also, insome sectors, much of the legislation is underpinned by policy initiatives, which provide anew dimension to the legislation.

• As the functions of regulatory bodies and other agencies are often defined by legislation,there may be constraints upon their ability to cooperate with each other.

• The effectiveness and enforcement of legislation in the marine environment is oftencompromised by organisational problems, and distinct jurisdictional boundaries betweenland and sea.

• There is no overall legislative framework for the integrated management of the marine andcoastal environment.

OPTIONS FOR REFORM

The three options presented for reform of the current legislative framework are:• Retention of the status quo: the laissez faire scenario which involves retaining the existing

sectoral approach to legislating for the planning and management of the Welsh marineenvironment;

• non-statutory coordination of the implementation of existing laws: this option isessentially the expansion of the current policy framework. Arrangements for improvedcoordination and cooperation could be enshrined within plans that do not themselves takethe form of legislation, but utilise existing mechanisms set out in a series of guidancedocuments; and

• marine legislative reform: this could be accomplished in two main ways � at theframework level, involving the coordination of existing legislation (framework statute), oron a comprehensive level, which would involve wholesale reform of the coastal and marineplanning and management system.

Arising from a legislative approach is the need for a defined ministerial and departmental leadand for any advisory and supporting bodies to take forward the implementation of an integratedmanagement strategy for the Welsh marine environment.

CONCLUSION

The complex framework of national laws affecting the coastal and marine environment hasinevitably created many anomalies that can only be resolved through legislation. Any suchinstrument needs to include an over-arching vision and a long-term strategy for the protection ofthe coastal and marine environment, so that each sector has a clear set of objectives andenvironmental values against which decisions can be taken. Clearly the scope for independentlegislative reform in Wales is severely limited by the NAW�s lack of primary legislativepowers. For this reason, WWF is pressing for a UK Marine Act, with the ecosystem approach as

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its basis, which would provide over-arching legislation to provide stakeholders with a coherentregulatory framework for the management of the marine environment.

Recommendations

The output of this study and following workshop (Part B) should provide the basis for a morein-depth review of legislation and governance structures related to the Welsh marineenvironment. As a precursor to any reform, the collection, collation and evaluation of baselinedata on the whole area under the jurisdiction of any new legislation would appear to beimperative. There is much work already being undertaken � what is missing is a coordinatedeffort to bring nationally significant information sources together in an accessible format inorder that gaps in the knowledge base can be addressed.

The legislative, policy and governance framework should also be comprehensively assessed interms of effectiveness and ability to meet the needs of a more integrated ecosystem-basedapproach. This would be a significant undertaking, building upon the initial review presented inthis report, as amended and modified by workshop participants. Arguably, such a study shouldbe coordinated by the Environment, Planning and Countryside Committee of the WAG withassistance and guidance provided by a steering group comprising WCMP members and (ofparticular importance) benefiting from expert legal input. A key outcome of this detailed reviewcould be a Welsh Consultation/Issues Paper identifying, within the current devolved functionsof the NAW:• amendments required to existing statutes to remedy gaps or inconsistencies in the legislative

framework;• existing powers available to the NAW under devolved legislation that have not yet been

utilised;• obsolete legislation and regulation that could be repealed;• recommendations for the potential amendment of the roles and responsibilities of relevant

authorities;• recommendations for structural changes that would assist in streamlining marine regulation;• provisions for the NAW to �opt back out� of legislation being developed in Westminster if,

during its passage through Parliament, it were amended in a way that made it lessacceptable to Wales.

Finally, it is also recommended that the WAG develop a long-term strategy for the sustainablemanagement of WTS, including protection of the coastal and marine environment, so that eachsector has a clear set of objectives and environmental values against which decisions can betaken.

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Acronyms

AONB Area of Outstanding Natural BeautyCCP Commonwealth Coastal Policy (Australia)CCW Countryside Council for WalesCEC Crown Estates CommissionersCFP Common Fisheries PolicyDEFRA Department of Food, Environment and Rural AffairsDfT Department for TransportDLCD Department of Land Conservation and Development (Oregon)DTI Department of Trade and IndustryEA Environment AgencyEEZ Exclusive Economic ZoneEIA Environmental Impact AssessmentGBRMP Great Barrier Reef Marine ParkGWA Government of Wales ActICZM Integrated Coastal Zone ManagementIDG Inter-Departmental GroupIMO International Maritime OrganisationIWA Institute of Welsh AffairsJNCC Joint Nature Conservation CommitteeLPA Local Planning AuthorityMCA Maritime and Coastguard AgencyMCEU Marine Consents Environment UnitMFOC Minister of Fisheries and Oceans CanadaMLWM Mean Low Water MarkMNCR Marine Nature Conservation ReviewMNR Marine Nature ReserveMoD Ministry of DefenceMOU Memorandum of UnderstandingMPA Marine Protected AreaNAW National Assembly for WalesNGO Non-Governmental OrganisationNZCPS New Zealand Coastal Policy StatementODPM Office of the Deputy Prime MinisterOORM Oregon Ocean Resources Management Act 1997OPAC Ocean Policy Advisory Council (Oregon)ORCU Offshore Renewables Consents UnitPPG Planning Policy GuidanceRAC Resource Assessment Commission (Australia)RMA Resource Management Act (New Zealand)SAC Special Area of Conservation (Habitats Directive)SCW Sports Council for WalesSEA Strategic Environmental AssessmentSFC Sea Fisheries CommitteeSPA Special Protected Area (Birds Directive)

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SSSI Site of Special Scientific InterestTAN Technical Advice NoteUDP Unitary Development PlanUK United KingdomUNCED United Nations Conference on Environment and DevelopmentUNCLOS United Nations Convention on the Law of the SeaWAG Welsh Assembly GovernmentWCMP Wales Coastal and Maritime PartnershipWDA Welsh Development AgencyWFD Water Framework DirectiveWO Welsh OfficeWSP Wales Spatial PlanWSSD World Summit on Sustainable DevelopmentWTB Wales Tourist BoardWTS Wales Territorial Sea

Contents

Page

Executive Summary iAcronyms iv

PART A: REPORT 11. Introduction 2

1.1 Context1.2 Background to this Report1.3 The Marine and Coastal Environment

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2. Legislative and Administrative Background 82.1 Sources of Jurisdiction2.1.1 International Law2.1.2 European Community Law2.1.3 United Kingdom Law2.1.4 Legislation of the National Assembly for Wales2.1.5 Local Legislation and the Seaward Limits of Planning Control2.2 Overview of Administrative Structures and Organisations2.3 Integrated Management2.3.1 Developments in integrated management2.3.2 Sustainable development and the National Assembly for Wales

889

11121314232324

3. Issues Relating to the Existing Legislative Framework 263.1 Introduction3.2 Over-arching Issues Relating to Marine Environmental Legislation3.2.1 Complex Tiers of Rules3.2.2 Specificity3.2.3 Commencement3.2.4 Language3.2.5 Discretions3.3 Issues Relating to the National Assembly for Wales3.4 Adequacy of Legislation3.4.1 Sectoral Approach3.4.2 Implementation and Enforcement3.4.3 Lack of Integration/Strategic Framework3.5 Need for Reform3.6 Lessons from International Practice

2626262727272828292931323336

4. Options for Legislative Reform 484.1 Introduction4.2 Elements of Reform4.3 Retention of the Status Quo4.4 Non-Statutory Coordination of the Implementation of Existing Laws

48485153

4.5 Marine Legislative Reform4.6 Administrative Reform of Governance Structures4.6.1 At the UK Level4.6.2 At the Devolved (Wales) Level4.7 Conclusion4.7.1 Recommendations

556060626364

PART B: STAKEHOLDER WORKSHOP REPORT 65

APPENDIX 1 Interview Participants

APPENDIX 2 Devolved Primary Legislation

APPENDIX 3 Workshop Participants

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Part ALegislative reform for the Welsh

marine environment

Report

Iwan Ball

June 2004

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1 Introduction

1.1 CONTEXT

The planning and management of the Welsh marine environment, in common with all UKwaters, are entering a new phase of development. In a legal and political context, the mostsignificant changes relate to the increasing importance of European measures and theirincorporation into national law, along with the devolution process and transfer of powers to theNational Assembly for Wales (NAW).1 Under the Government of Wales Act 1998, the NAWhas been granted specific powers, with certain important limitations, to make secondarylegislation in several fields that influence coastal and marine management. However,Westminster retains the exclusive power to enact primary legislation, and is responsible formarine affairs beyond the 12-mile limit of the Wales Territorial Sea (WTS) and for manyactivities within it.

With the NAW having recently completed its first term of office, it is timely to investigatewhether existing legislative powers in Wales need to be reviewed2 in order that the NAW is ableto meet its statutory commitment to sustainable development and ensures effective managementof marine and coastal resources.3 WWF is lobbying for a Marine Act for the UK, and iscurrently sponsoring two projects. Lawyers from Fenners� Environmental Law Team areworking on an overarching marine framework for the UK in the form of a UK Marine Act. Thisinitial work will be completed in Spring 2004. The intention is not to produce a complete orready-made Parliamentary Bill, but to stimulate debate and demonstrate how a Marine Act maylook. It should also demonstrate how such an Act could bring about the changes in planning andlegislation urgently needed by marine stakeholders for efficient and effective management ofdevelopment, and to afford greater protection for marine biodiversity. WWF has alsocommissioned PriceWaterhouse Coopers to conduct the first phase of a study into the economicimplications and inefficiency of the current unwieldy and piecemeal planning and consentsregime, as a basis for building the economic case for a UK Marine Act. Against thisbackground, this study investigates whether such an approach could provide the statutory basisfor an integrated marine policy for Wales.

The coast has traditionally been perceived as a jurisdictional boundary between land-based andmaritime laws, and has rarely been recognised in statute as an integrated zone of legalcompetence.4 This tradition may be traced back centuries � for example the traditional propertyrights of the Crown, indirectly defining the jurisdiction of public authorities, perpetuate thisland-sea divide.5 Against this historic background, a plethora of administrative laws has

1 Elsewhere in this report, the term Welsh Assembly Government (WAG) is used in reference to the Assembly Cabinet.The WAG develops and implements policy via the civil service and a wide range of Assembly-sponsored bodies. TheNAW debates and approves legislation and holds the Assembly Government to account.2 This report acknowledges the work of the Richard Commission (report published 31 March 2004), which was taskedwith investigating, inter alia, the extension of proportionality in the composition of the Assembly, and of the relevantcompetencies devolved.3 The purpose of this report is not to come to a view on the merits of the devolution settlement for Wales. The focus isupon improvements in the legislative as opposed to political process.4 Gibson, J. (1999) Legal and regulatory bodies: appropriateness to integrated coastal management. Report to theEuropean Commission � DG XI.D.2 on behalf of MacAlister and Partners Ltd, Lymington, October 1999.5 Ballinger, R. (2002) An evaluation of integrated coastal management in the United Kingdom. In: Sain, B.C. et al (eds)Sustainable coastal management: a transatlantic and Euro-Mediterranean Perspective. Kluer Academic Publishers,pp.75-93.

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subsequently been superimposed in an ad hoc way, dealing with particular sectoral issues orproblems and defining the functions of the regulatory bodies responsible for them.Consequently, separate codes of law have evolved for issues such as land-use planning, coastaldefence, ports, shipping, minerals, energy, fisheries, aquaculture, tourism and recreation, wastedisposal and pollution control, and conservation and site protection. These legislativeinstruments often fail to recognise their inter-relationship with legislation in other sectors,resulting in overlaps, inconsistencies and gaps in the legislative framework.

This legislative puzzle is further complicated by the fact that laws are enacted at a range ofdifferent levels. For example, international law provides the framework for determining nationaljurisdictions, contributes to the resolution of national disputes, and generally deals with globalenvironmental issues such as biological diversity, nature conservation and climate change.There is also extensive sectoral international legislation, particularly in relation to shipping andfisheries. As previously noted, national laws are being increasingly influenced by Europeanlegislation, particularly in the context of fisheries, water quality, habitat and speciesconservation, and environmental impact assessment. These international obligations aretypically transposed into UK law by Acts of Parliament or Ministerial Orders.

The House of Commons Select Committee highlighted the complexity and sectoral nature oflaws relevant to the management of the UK coast, noting more than 80 pieces of primarylegislation in the form of Acts of Parliament relating to coastal matters in England and Walesalone.6 A number of different approaches have been adopted in conferring powers piecemealupon the NAW resulting in different provisions for the exercise of ministerial competencieswithin many of the Acts of Parliament. This leads to an extremely complex framework ofdevolved legislation, particularly when considered in conjunction with the vast body ofsecondary legislation that relates to coastal and marine matters in England and Wales and theseparate statutory instruments enacted by the NAW. Consequently, there is an enormous amountof legislation that can potentially be of relevance to coastal and marine management in Wales,with little vertical (at different spatial scales) or horizontal (across sectors) integration. It hasbeen argued that this sectoral approach leads to fragmented control which has the potential fornot adequately protecting the marine environment.7,8 It is evident, therefore, that coordinationand integration is required across and between those horizontal and vertical aspects.

6 House of Commons Select Committee on the Environment (1992) Coastal zone protection and planning. Secondreport, HMSO, London.7 Read, .S. et al. (2000) A review of marine and coastal environmental protection legislation. Report to the Joint MarineProgramme of the Wildlife Trusts and WWF-UK. Institute of Estuarine and Coastal Studies (IECS), University of Hull,January 2000.8 Boyes, S. et al. (2003) Deficiencies in the current legislation relevant to nature conservation in the marine environmentin the United Kingdom. Report to the Joint Nature Conservation Committee (JNCC). Institute of Estuarine and CoastalStudies (ICES), University of Hull, June 2003.

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1.2 BACKGROUND TO THIS REPORT

The former Department of the Environment, Transport and the Regions (DETR) commissionedseveral investigations into the extent of legislation and the powers of local authorities during theMarine Nature Conservation Review (MNCR) (section 3.4). However, these studies focusedmainly upon regulation in the coastal zone, with little regard to the offshore marineenvironment. This shortcoming has recently been addressed by the Irish Sea Pilot,9 whichsought to investigate problems in existing governance systems, legislation and enforcementmechanisms which hinder the implementation of conservation objectives in the Irish Sea. Thestudy, coordinated by the Joint Nature Conservation Committee (JNCC), has resulted in severalimportant reports10 which are of direct relevance to this report and the management of the Welshmarine environment.

This study was commissioned by WWF Cymru to identify the key pieces of international,European, national and NAW legislation that applies to the Welsh marine and coastalenvironment and identify the major shortcomings and problems arising from existing sectorallegislation and regulatory procedures, and make recommendations to improve the situation. Thiswas accomplished through an extensive literature review of published and non-publishedsources, a comprehensive analysis of the main statutory measures (both primary and secondarylegislation) that apply to the Welsh marine environment, and a number of semi-structured in-person and telephone interviews with a range of key stakeholders (Appendix 1) in order tounderstand the efficiency and effectiveness of the existing legislative framework.

This report begins with an overview of the sources of jurisdiction in the Welsh marineenvironment and the administrative structures and organisations involved in its management(Chapter 2). This is followed by a summary of the key issues relating to the existing legislativeframework (Chapter 3), based upon the extensive analysis of international, European anddomestic (UK and NAW) primary and secondary legislation undertaken, prepared as separatetopic papers for each sector. The chapter summarises the shortcomings in the marineenvironmental legislative framework, which are to the detriment of the integrated managementof the Welsh marine environment and considers some the approaches adopted by other countriesto remedy problems arising from inadequate and inconsistent regulatory and managementmechanisms. Salient lessons are highlighted, which Wales can draw from this internationalexperience. The implications of a range of statutory and non-statutory options/optionalcomponents are discussed which could strengthen the legislative basis for the improvedplanning and management of the Welsh marine environment (Chapter 4). These range from thelaissez faire scenario, through improved guidance on implementation of policy, to anoverarching framework to ensure integrated management and sustainable development of themarine environment.

9 The interim report of the Review of Marine Nature Conservation recommended the setting up of a pilot to test thepotential for an ecosystem approach to managing the marine environment at a regional scale.10 The Irish Sea Pilot reports are referenced elsewhere in this report, where applicable. All are available on the JNCC�swebsite: www.jncc.gov.uk/marine/irishsea_pilot/default.htm

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1.3 THE MARINE AND COASTAL ENVIRONMENT

For the purposes of this study, the marine and coastal environment of Wales can be consideredin terms of the coastline and seabed together with the sea itself, including the water column andits surface. The latter extends beyond the 12-mile limit of the Wales Territorial Sea (WTS) toinclude all of that area of sea between the median line separating Welsh waters from those ofneighbouring countries, within and beyond the UK (figure 1.1). Although these elements areoften perceived as separate environments, they form a continuum, and may be technicallydefined as the �maritime zone� of Wales.11 Proximity to the Atlantic Ocean and adjacent seasdetermines the nature of that maritime zone, its landforms and wildlife.12 In this report, the term�marine environment� is used in its broadest sense to refer to this zone, and covers all the inter-tidal and sub-tidal areas within the estuarine, inshore, coastal and marine zones.13 In legal terms,the �coastal zone� has an extent that often differs according to the statute under consideration.14

The Welsh coastline is 1,562km in length, which equates to about 8 per cent of the totalcoastline of Britain.15 In biogeographical terms, the Welsh coastline is of high conservationvalue, with more than 70 per cent under protective or indicative designations. Statutoryconservation designations for the Welsh coast, in relation to the entire UK coastline, are shownin figure 1.2. Of particular note is the number of candidate Special Areas of Conservation(SACs), designated for their European importance for wildlife habitats and species, whichinclude Cardigan Bay, Lleyn Peninsula and the Sarnau, Cemlyn Bay and the Anglesey coast(saltmarsh), Carmarthen Bay and estuaries, Pembrokeshire marine SAC, the Menai Straits andColwyn Bay.16 In total there are seven Special Protection Areas (SPAs) designated under theEuropean Birds Directive, and three Ramsar sites (with some sites such as the Severn Estuaryand Burry Inlet named under both designations). There are also many coastal areas designatedas Sites of Special Scientific Interest (SSSIs) on the basis of their plant and invertebrate fauna.

The only Biosphere Reserve in Wales is found on the Dyfi Estuary. In addition, there are fourcoastal Areas of Outstanding Natural Beauty (AONB),17 and two National Parks with stretchesof coastline. Pembrokeshire Coast National Park is the UK�s only truly coastal park, and coversmuch of the coastline of the south-west Wales peninsula and several offshore islands, includingSkomer, Skokholm, Ramsey and Caldey. The presence of one of the two statutory MarineNature Reserves (MNRs) in Britain (the waters around Skomer and the Marloes Peninsula,designated in 1990), indicates the richness of the Welsh marine environment.

11 Countryside Council for Wales (CCW) (1995) Seas, shores and coastal areas: CCW�s Maritime Policy. Bangor. p.3.12 ibid. p.4.13 Boyes, S. et al. (2003) Summary of current legislation relevant to nature conservation in the marine environment inthe United Kingdom. Report 1 to the Joint Nature Conservation Committee (JNCC). Institute of Estuarine and CoastalStudies (IECS), University of Hull, June 2003, p.1.14 op cit., ref. 9, p.1.15 Doody, P. (2001) Coastal Guide Country File: Wales. Web resource available at: www.coastalguide.org/wales/walrcol.html16 Other proposed SACs (pSACs) include the Dee and Severn estuaries.17 Including the Gower, which was the first AONB to be designated in England and Wales in 1956.

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Figure 1.1 Extent of Wales territorial sea and maritime zone

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Figure 1.2 Statutory nature conservation designations for the Welsh coast compared to the UKas a whole

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2 Legislative and administrative background

2.1 SOURCES OF JURISDICTION

A complex and wide-ranging system of legislative measures impacting and controlling themarine environment has evolved, which aim to regulate and harmonise development impactswhile protecting nature conservation interests. Many of the activities and their effects may betransboundary, requiring individual states to develop their own statutory controls andadministrative structures while at the same time adopting supra-national and internationalprotocols and conventions. Consequently, legislation has developed in a sectoral manner inresponse to the need to influence control over individual activities and uses and users of themarine environment. This has resulted in regional, national, European and international actions,with few pieces of integrated legislation.18

Marine environmental legislation in the UK is further complicated by the different constitutionalstatus of England, Wales, Scotland and Northern Ireland. Since 1 July 1999, many statutoryresponsibilities have been transferred to the regional administrations: the National Assembly forWales, the Northern Ireland Assembly and the Scottish Parliament. There are also differencesbetween the official bodies and local authorities in each part of the UK.19 Moreover, somelegislation applies throughout the UK, but in other cases its geographical extent is limited, andthere may be different or equivalent national provisions. This section identifies the various legalsources at different jurisdictional levels from which legislation impacting and controlling theWelsh marine environment is derived.

2.1.1 International Law

Arguably the most influential international regulatory agreement, in the context of maritimelaw, is the United National Convention on the Law of the Sea (UNCLOS), described by Cicin-Sain and Knecht as �a constitution for the oceans�.20 UNCLOS was agreed in 1982 and cameinto force in the UK in August 1997. It provides the framework for determining nationaljurisdictions and contributes to the resolution of international disputes. Under UNCLOS thesovereignty of a State extends beyond its land territory and internal waters to an adjacent belt ofsea, described as the �territorial sea�. The maximum permissible breadth of the territorial sea is12 nautical miles (nm) from a baseline, restricted to the mid-point when the territorial seas ofdifferent States would otherwise overlap. The normal baseline is low water mark,21 althoughstraight baselines of no more than 24nm may be drawn across deeply indented bays andestuaries. The UK has adopted such lines across the Severn Estuary (at the end of the Gowerpeninsula) and across the mouth of the Dee Estuary. Straight baselines are also used inCarmarthen and Cardigan Bays, among other places, and have the effect of extending theterritorial sea to more than 12nm offshore (figure 1.1). Waters inside these baselines are

18 Davison, A. (2003) A Marine Act for Scotland. Delivering an ecosystem-approach to managing Scotland�s marineenvironment. Report to WWF Scotland. Posford Haskoning Ltd. March 2003, p.1.19 Gibson, J. (1999) Legal and regulatory bodies: appropriateness to integrated coastal zone management. Report byMacAlister Elliott and Partners Ltd. to the European Commission � DG XI.D.2. Lymington, October 1999, p.24.20 Cicin-Sain, B. & Knecht, R. (1998) Integrated Coastal and Ocean Management. Concepts and Practices. IslandPress, Washington.21 This baseline applies not only to the mainland but also to islands.

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classified by international law as �internal waters� and are under the exclusive sovereignty ofthe State. UNCLOS confers a right of innocent passage by foreign vessels in the territorial sea,which allows them to navigate through those waters.

Some international measures indirectly influence the marine environment because they dealwith transboundary issues or matters that traverse the various environmental media � e.g. theConvention on Biological Diversity, the UN Framework Convention on Climate Change, theBonn Convention of the Conservation of Migratory Species of Wild Animals, the LondonConvention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, andthe Bern Convention on the Conservation of European Wildlife and Natural Habitats. Othertreaties, such as the Ramsar Convention on Wetlands, include coastal areas within their widergeographical remit. Although not legally binding, there is also Chapter 17 of Agenda 21, agreedat the UN Conference on Environment and Development (UNCED) in 1992, which declares thegeneral principles for the protection of oceans, seas and coasts.22

Additionally, there is extensive sectoral legislation that relates specifically to internationalmaritime issues. For example, the International Maritime Organisation (IMO), the onlyspecialised agency of the UN wholly dedicated to maritime affairs, has promulgated a series ofconventions and protocols for improving maritime safety and preventing pollution from ships.These are global legal instruments, but there are other measures that have a more regional focus,e.g. the OSPAR Convention for the Protection of the Marine Environment of the North-eastAtlantic and the Ministerial Declarations of the International Conferences on the Protection ofthe North Sea, although the latter are statements of political intent rather than legalcommitments.

The UK government is the contracting party which signs international agreements and isconsequently responsible for their implementation and enforcement. The legislation toimplement these international obligations is typically enacted by Act of Parliament orMinisterial Order. However, the option exists, in theory, for the government to delegate the taskto the Welsh Assembly Government (WAG) in particular cases, although internationalaccountability would remain with the State.23

2.1.2 European Community Law

There are many European Directives and Regulations that directly or indirectly influence themarine environment. Examples of Directives that directly affect the activities that occur thereinclude the Bathing Water Directive (76/160/EEC) and the Shellfish Waters Directive(79/923/EEC). As with international legislation, there are also other legal measures that cutacross sectoral interests to relate to a particular environmental issue, or promote cross-cuttingmanagement approaches.24 Examples include the Environmental Impact Assessment Directives(85/337/EEC and 91/11/EC), the Dangerous Substances Directive (76/464/EEC), the HabitatsDirective (92/43/EEC), and the Urban Waste-Water Treatment Directive (91/271/EEC). Otherrecent developments include the Strategic Environmental Assessment (SEA) Directive(2001/42/EC) and the Water Framework Directive (2000/60/EC), which requires member states 22 These global principles were endorsed and further developed at the World Summit on Sustainable Development inJohannesburg, 2002.23 Cardiff University (2001) Analysis of options for improving the planning and management of Wales Territorial Sea.Report to the Countryside Council for Wales (CCW). February 2001, p.15.24 Taussik, J. et al. (2002) Management of the Territorial Sea. In: Conference proceedings of Littoral 2002, TheChanging Coast. Eurocoast / EUCC, Porto, Portugal, pp.85-93.

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to produce river basin management plans.25 The UK, as a member state, is required to complywith the SEA Directive before 21 July 2004, but is already implementing the Directive withrespect to specific sectors (e.g. offshore oil and gas).

EC Directives specify objectives that member states are required to achieve by set deadlines,and are implemented through national legislation. In the UK this is typically achieved by meansof statutory orders made by designated ministers under the European Communities Act 1972.26

Scope exists for the WAG to be given legislative responsibility for implementing EC Directivesin Wales, although the Assembly would need to be designated for this purpose by the UKgovernment in relation to the subject area of each Directive.27 Little use has so far been made ofthis power.

EC Regulations, on the other hand, do not generally require additional national laws for theirimplementation, and are automatically binding.28 The EC fisheries regulations, enshrined in theCommon Fisheries Policy (CFP), are important examples. Although the UK has ceded ultimatejurisdiction over fisheries to the EC, it retains certain legal rights under the CFP within 12nmfrom the baseline of the territorial sea, and exclusive rights within 6nm of the baseline. Memberstates are allowed to take national measures for the conservation and management of resourcesin waters under their own jurisdiction,29 which means there is some scope for localised fisheryregulations in the Wales Territorial Sea (WTS).30

Reference should also be made to the Recommendation of the European Parliament and theCouncil of Ministers on Integrated Coastal Zone Management (ICZM) (2002/413/EC), whichproposes a strategic approach to coastal management, and goes on to set out a process wherebynational strategies, national stocktaking, cooperation, report and review will deliver what isrequired (section 2.3.1). Similarly, the Commission Communication Towards a strategy toprotect and conserve the marine environment (COM (2002) 539 final) of 2 October 2002provides the first step towards the formulation of a thematic strategy to promote sustainable useof the seas and oceans and to conserve marine ecosystems. Developed in response to the SixthEnvironment Action Programme, the Communication summarises the present situation withregard to development and implementation of policies to control threats and sets environmental,operational and institutional objectives. Although the objectives outlined in the Communicationare to be welcomed, it is regrettable that commitments given by environment ministers at theFifth North Sea Conference in Bergen 2002 and the commitments given by all EU memberstates at the World Summit on Sustainable Development (WSSD) in Johannesburg are notadequately reflected in the Communication. Many of the objectives and actions also lack a time-scale, and would benefit from the development of indicators to measure progress towards theobjectives. Nevertheless, the Communication is the best guidance to date at an EU level, and itis desirable that the necessary resources are made available to progress development andimplementation of the European Marine Strategy.

25 These include estuaries and coastal waters up to one nautical mile from the baseline of the territorial sea.26 For example, the Conservation (Natural Habitats, &c) Regulations 1994, SI 1994/2716.27 op cit., ref 6, p.16.28 National legislation is required, however, for enforcement mechanisms.29 Provided that they involve local stocks of interest only to their own fishermen, and the measures are compatible with,and no less stringent than, Community measures.30 op cit., ref 6, p.17.

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Also of relevance to the management and planning of UK waters and their resources is the DraftTreaty establishing a Constitution for Europe, which was drafted over 16 months and adoptedby the European Convention on 13 June and 10 July 2003. With the draft Constitution, the EUwould, for the first time in its history, have a basic set of laws to replace a plethora of treatiesadopted during its nearly 50 years of existence. The draft Treaty could have far-reachingimplications for the management and regulation of the UK�s marine environment, and the CBIhas already warned that it could threaten British control of its North Sea oil and gas. At theIntergovernmental Conference in Brussels (12-13 December 2003), heads of state andgovernment did not reach an agreement on the final text of the Constitution, and deliberationwill continue in 2004 under the Irish Presidency.

2.1.3 United Kingdom Law

The UK Parliament is the only national forum capable of enacting primary legislation relating toWales and its territorial sea and offshore marine environment. The national regime for marinemanagement generally remains sectoral, with the tendency to develop ad hoc solutions toproblems as and when they arise.31 Consequently, most principal uses of the marineenvironment are governed by Acts of Parliament, which often fail to recognise their inter-relationship with legislation in other sectors. These Acts provide the legal basis for the mainbranches of administration, giving powers to central government departments and statutorybodies (section 2.2), and general powers to local authorities.32 They often take the form of�enabling legislation�, empowering ministers or the NAW to establish subordinate authoritiesand to make secondary rules and regulations in the form of statutory instruments (SI). Acts ofParliament, or indeed individual sections within them, need not necessarily apply to the wholeof the UK, and can be used to make different provisions for Wales, although their enactmentrequires the support of the UK government.

The coastal zone is also subject to the rules of common law, which recognises public rights offishing and navigation, and establishes the rules governing the definition and ownership of theinter-tidal foreshore. At common law, the foreshore lies between the high water mark ofmedium high tides and the low water mark.33 However, the foreshore has been defined indifferent ways under statute.34 Furthermore, it has been argued that it includes the whole of theshore that is from time to time exposed by the receding tide. It appears, therefore, that thedefinition of the foreshore is not altogether clear.35

31 Ballinger, R. (2002) An evaluation of integrated coastal management in the United Kingdom. In: Sain, B.C. et al (eds)Sustainable coastal management: a transatlantic and Euro-Mediterranean perspective. Kluer Academic Publishers,p.85.32 op cit., ref 6, p.18.33 The landward limit is the high water mark of ordinary tides, which is the line of the medium tide between the springand neap tides throughout the year. The seaward limit of the foreshore is usually taken to be the low water mark of suchtides.34 For example, the Limitation Act 1980 s15(7) Schedule para 11(3) defines the foreshore as �the shore and bed of thesea and of any tidal water, below the line of medium high tide between the spring tides and the neap tides.� Under theSalmon and Freshwater Fisheries Act 1975 s41(1) includes �the shore and bed of the sea and of every channel, creek,bay and estuary, and navigable river as far up as the tide flows.�35 Scottish Law Commission (2001) Discussion paper on the law of the foreshore and seabed. The Stationery Office,Edinburgh, p.72.

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2.1.4 Legislation of the National Assembly for Wales

The Government of Wales Act (GWA) 1998 defines the constitutional powers and functionsof the National Assembly for Wales (NAW), which was established on 1 July 1999. Unlike theScottish Parliament and the Northern Ireland Assembly, the NAW does not have the power tomake primary legislation, i.e. independent measures equivalent to Acts of Parliament.Westminster retains the exclusive power to pass primary legislation for Wales and to grant theNAW specific powers to make secondary legislation.

The scope of the NAW�s devolved authority is defined by the terms of the Government ofWales Act.36 Schedule 2 lists the 18 �fields� in which functions were originally to betransferred. These fields are described in very general terms, such as �economic development�,�the environment�, and �town and country planning�,37 although the NAW has responsibility inseveral fields that are significant for coastal and marine management. The National Assemblyfor Wales (Transfer of Functions) Order 199938 transferred to the NAW specified powers withinthose fields, in terms of functions exercisable by a minister under a specified list of enactments(Appendix 2). These include many powers to make secondary legislation in the form ofstatutory instruments. Such orders commonly deal with detailed matters of regulation that areonly broadly described in primary legislation, but they are limited in scope by the terms of theActs that created each power. Consequently, the NAW is not free to enact legislation on everymatter affecting Wales that it might wish to change.39 Furthermore, there are restrictions on thepowers of the NAW in relation to certain provisions, and some functions must be exercisedjointly or in consultation with UK government departments. Important exclusions from theNAW�s remit include merchant shipping, oil and gas development and defence. Moreover, noneof its powers is exercisable beyond the 12-mile limit, with the exception of a few mattersrelating to the abandonment of offshore installations.40

Since the original Order of the Privy Council, further powers and functions have been conferredupon the NAW in various ways, including a second Transfer of Functions Order.41 The Instituteof Welsh Affairs (IWA), in its memorandum to the Assembly Review of Procedure,42 cited thefollowing methods:43

• Further entries have been added to the Transfer of Functions Order by direct amendmentscontained in the provisions of new Acts;

• changes have been made indirectly to the Transfer of Functions Order by treating areference to a particular Act listed in the original Order as including a reference to textualamendments to that Act contained in a later, usually differently named Act;

36 Section 22 of the Act provides a procedure for transferring to the NAW some of the functions of government ministersunder existing legislation.37 The other fields are agriculture, forestry, fisheries and food, ancient monuments and historic buildings, culture(including museums, galleries and libraries), education and training, health and health services, housing, industry, localgovernment, sport and recreation, tourism, transport, water and flood defence, and the Welsh language.38 SI 1999/672.39 op cit., ref 6, p.19.40 ibid. p.19.41 The National Assembly for Wales (Transfer of Functions) (No.2) Order 1999 (SI 1999/2787).42 The National Assembly�s Review of Procedure was launched by the First Minister in July 2000, and published its

findings in February 2002.43 Select Committee on Welsh Affairs Fourth Report (2003) The primary legislative process as it affects Wales. HMSO,

27 March 2003.

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• additional powers have been conferred directly on the NAW by new primary legislation;• changes to the functions of the NAW have been made by amending the Government of

Wales Act; and• additional functions have been conferred by delegated legislation made by the NAW, by the

NAW and a UK government minister acting together, or by the Secretary of State.

There has been little consistency in the way additional powers have been conferred on theNAW, resulting in an extremely complex legislative picture of devolution in Wales. As anexample, while the Government of Wales Act lists those powers to be conferred on the NAWunder broad subject headings, the Transfer of Functions Order listed these enactments, not bysubject area, nor even by calendar year, but by regnal year (a year reckoned from the date oranniversary of a monarch�s accession).44 Furthermore in two thirds of the Acts listed, only somepowers were transferred.

Even in instances where powers have been conferred on the NAW by primary legislation, anumber of different approaches have been adopted resulting in difficulties in identifying thoseaspects of a Bill that affect Wales. For example, some Bills have used separate Parts, some havehad separate Clauses, while others have had references to Wales dispersed throughout the Bill.This piecemeal approach has resulted in the devolution settlement being described as a processrather than an event, or �evolution not revolution�.45 The situation in Wales contrasts markedlywith the picture in Scotland, where the devolution settlement transferred general legislative andministerial competence in devolved areas respectively to the Scottish Parliament and theExecutive. Future Acts of the UK Parliament could confer additional powers directly on theAssembly. An independent Commission (the Richard Commission) has been established toconsider the powers and electoral arrangements of the NAW. The report, published in March2004, contributes to decisions on the future of the NAW and the way Wales is governed in thefuture.

2.1.5 Local Legislation and Seaward Limits of Planning Control

Local legislation can be made at both national and local levels, respectively through local Actsof Parliament or statutory instruments made by national government, or bylaws enacted by localbodies. There are also various statutes that enable government ministers or the NAW to makelocal statutory instruments. The scope of such orders is limited in each case by the terms of theenabling statute. Examples include the Harbour Revision Orders made under the Harbours Act1964,46 and various Orders made under the Transport and Works Act 1992. In both cases, anapplication for the Order is made by the project promoter, and the role of government is toadjudicate upon its merits.47

The power to enact local bylaws is conferred on several bodies by general and local Acts ofParliament and statutory instruments. These include local authority bylaws made under theLocal Government Act 197248 and public health bylaws. Other bodies with powers to make

44 Although this is standard in law, it makes identifying the exact powers of the NAW a time consuming and complextask.45 op cit., ref 26.46 The role of the NAW, however, is largely limited to approving orders relating to fishing harbours, as primaryresponsibility for other ports remains with the DfT.47 op cit., ref 6, p.20.48 Section 235.

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local bylaws for specific purposes include harbour authorities, Sea Fisheries Committees(SFCs), the Countryside Council for Wales (CCW), and the Environment Agency (Wales). TheEnvironment Act 199549 also enables fishery bylaws to be made for marine environmentalpurposes.

The extent of legislative powers available to local authorities has been the subject of muchdebate. The jurisdiction of local authorities generally to low water mark (though more extensivein some areas such as the Severn Estuary) arguably limits the ability of land-based regimes torespond to marine issues.50 In particular, the planning system established under the Town andCountry Planning Act 1990 is essentially terrestrial, and does not normally extend beyond themean low water mark, although planning authorities are required to take account of PlanningPolicy Wales (section 2.5.2), which recognise the impact of land use on the marineenvironment.

2.2 OVERVIEW OF ADMINISTRATIVE STRUCTURES AND ORGANISATIONS

The organisational and policy framework for coastal and marine management is extremelycomplex. A plethora of agencies and other bodies are involved in an array of terrestrial andmarine sectors and are responsible for the management and regulation of many differentactivities. The organisational framework and range of plans involved in coastal and marinemanagement in Wales have been discussed at length in Cardiff University�s reports, alreadymentioned, to CCW in 1995,51 199752 and 200153 and need not be addressed in detail here. Theonshore and offshore boundaries of coastal planning and management in Wales are illustrated infigure 2.1.

At the UK and Wales level, there are a considerable number of government agencies and bodieswith coastal and/or marine interests and responsibilities. These are listed in table 2.1, along witha brief summary of their coastal and marine responsibilities. This fragmented administrativestructure has evolved in response to piecemeal, largely sectorally-driven legislation, which isoften viewed as an impediment to effective coordination of policies and cooperation betweenbodies. In their report to CCW,54 Cardiff University identified four sets of institutions allied tothe role of national and local government in the management of the WTS:• UK central government departments;• Welsh Assembly Government (WAG) and the administrative arm of the Assembly;• Specialist bodies (executive agencies and non-departmental executive bodies) responsible

for the practical implementation of management; and• Local government (unitary authorities).

49 Sections 102-103.50 op cit., ref 7, p.88.51 Ballinger, R.C. et al. (1995) A review of coastal management in Wales. A report to the Countryside Council for Wales.University of Wales, Cardiff, pp.61-106.52 Ballinger, R.C. et al. (1997) Coastal management in Wales: looking to the future. A report to the Countryside Councilfor Wales. University of Wales, Cardiff.53 op cit., ref 6, p.24-32.54 ibid, p.26.

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As previously noted in section 2.1.3, the UK government remains the cornerstone of a sectoralmanagement system, with extensive legislation in all fields. The functions of the formerDepartment of the Environment, Transport and the Regions (DETR) were re-distributedbetween DEFRA55 and the Department for Transport, Local Government and the Regions(DTLR) in June 2001, and those of the former Ministry of Agriculture, Fisheries and Food(MAFF) (including coastal defence) were transferred to DEFRA in March 2002. However, since29 May 2002, the functions of the DTLR have been divided between the new Department forTransport (DfT) and the Office of the Deputy Prime Minister (ODPM).

Administrative devolution in Wales, unlike Scotland, has been relatively limited andcomparatively land-oriented. The UK government is responsible for marine affairs beyond theterritorial limits of the devolved administration, and for many activities within the WTS (figure2.1). This is particularly true of ports and shipping, defence and energy issues. For example, theDfT is responsible for shipping policy, pollution from ships, offshore safety and most harboursin Wales.56 Even in fisheries, the Assembly�s remit covers only the WTS, but not the watersbeyond.

55 The functions of the Environment Protection Group and the Wildlife and Countryside Directorate (including theCoastal Policy Section) were transferred to DEFRA from within the former DETR.56 Boyes, S. et al. (2003) Regulatory responsibilities and enforcement mechanisms relevant to marine natureconservation in the United Kingdom. Report 2b. Report to the Joint Nature Conservation Committee (JNCC). Institute ofEstuarine and Coastal Studies (IECS), University of Hull.

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Figure 2.1 Onshore and Offshore Boundaries of Coastal Planning, Management and Regulation.

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Sector Agencies /Bodies

General Major Responsibilities

Tourism/

Recreation

WTB

SCW

• Encourages the provision and improvement of tourism

amenities and facilities

• Advises government on tourism matters

• Promotes sport and outdoor recreation

• Advises NAW on sport and recreation

Environment EA • Broad range of environmental duties, responsible for

safeguarding and improving the natural environment:

- Controlling pollution and improving the quality of

coastal waters

- Flood defence

- Maintenance and improvement of fisheries

- Conservation of the natural water environment

- Promotion of water-based recreation

- Promotion of navigation

• Integrated Pollution Control and control of some air emissions

Conservation CCW

JNCC

• Government�s statutory adviser on nature conservation,

landscape and access in Wales

• Scientific aspects of nature conservation for the UK as a whole

• Conservation matters of international and European relevance

Heritage Cadw • Responsibility for marine archaeology/historic wreck sitesN.B. The NAW has delegated executive authority for implementing theProtection of Wrecks Act 1973 to Cadw.

Development WDA • Furthers the economic development of Wales

• Provides and safeguards employment

• Promotes industrial efficiency and competitiveness

• Furthers the improvement of the environment in Wales

• Acquires land in Wales to be made available for development

Fisheries SFC

EA

• Regulates coastal fisheries

• Regulates salmon and migratory trout to 6 nautical miles

Seabed CEC • Responsibilities as major landowner

• Grants regulatory leases of seabed

Table 2.1 Major agencies involved in coastal management in Wales (source: adapted fromBallinger et al., 1995)57

57 op cit., ref 34, p.77.

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In Wales, most of the functions of the ODPM, DEFRA, the Department for Culture, Media andSport (DCMS) and the Department of Health (DoH) are combined in the Assembly, whichcomprises subject divisions and three executive agencies (Cadw, Welsh European FundingOffice (WEFO), and the Planning Inspectorate � a joint agency with the ODPM). Thesedivisions and agencies cover the functions of the Assembly across all subject areas transferredby the Government of Wales Act 1998 and the subsequent Transfer of Functions Orders.58 Thestructure of the Assembly, with the relevant departments, divisions and responsibilities relatingto coastal and marine issues is shown in figure 2.2. There is no lead department on coastal andmarine issues within the Assembly, and roles with respect to the marine environment are sharedacross Environment, Planning and Countryside (EPC); Economic Development and Transport;and Culture, Welsh Language and Sport. For example, within EPC, responsibilities are sharedacross various divisions, including Agriculture and Fisheries Policy, Animal and Plant Health,Environment Division, and Planning Division. However, recent re-organisation of departmentalresponsibilities within the Assembly and the appointment of a Marine Policy Officer within thenewly-created Environment Division is a step towards addressing this problem. The relativelysmall size of the NAW enables interaction between divisions, mainly through bilateral meetings.

The principal source of influence of the NAW in the EU policy process is through domesticengagement with the UK government. Consequently, an effective relationship between theNAW and Westminster is crucial if that influence is to have an impact at the EU level.59 Underthe devolution settlement of 1999, the EU policy of UK government is a reserved matter �Westminster retains the exclusive power to pass primary legislation for Wales and to grant theNAW specific powers to make secondary legislation. However, because of the overlap betweenthe devolved powers and EU legislative competence and the expectation that the devolvedadministrations would implement EU policy with respect to devolved matters through their ownlegislation, a Concordat on Coordination of EU Policy Issues was signed between the UKgovernment and the three devolved administrations.60 Although not legally binding and devoidof constitutional status, the concordat commits all four administrations to the principle of goodcommunication with each other, especially where one administration�s work may influence theresponsibilities of another administration. This commitment applies to legislative proposals aswell as other policy areas. Consequently, the UK government has undertaken to consult theAssembly Cabinet61 at an early stage on all relevant proposals for primary legislation. There arealso several other informal arrangements that have evolved between individual Whitehalldepartments and the NAW with a view to achieving �joined-up� governance, especially withrespect to UK government discussions on EU policy.

There is a range of executive agencies and non-departmental executive bodies with a coastaland/or marine remit that have responsibility for the practical implementation of management(table 2.1). The administrative structure and functions of these agencies are described in detailelsewhere62 and need not be repeated. Since, in a maritime context, Welsh political and

58 In addition, the Strategic Policy Unit was created in November 2001 to assist the Cabinet of the WAG in thedevelopment of strategic policy. It brings together the work of the existing Policy Unit and the ministerial special adviserteam and its responsibilities, inter alia, include promotion of the sustainable development duties of the Assembly.59 Scott, D. (2002) �Constitutional� regions and the European Union. Paper presented in evidence to the RichardCommission, Aberystwyth, October 2002.60 ibid.61 Consultation between Whitehall departments and the Assembly has developed almost exclusively with the NationalAssembly Cabinet, rather than the 60-member Assembly.62 See for example, Boyes, S. et al. (2003), op cit., ref 39.

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administrative influence is arguably greatest in aggregate dredging, inshore fisheries andconservation, along with coastal defence, waste disposal and water resource management,priority is given here to the bodies tasked with responsibilities in these sectors.

The Crown Estate is different to the other executive bodies discussed here, in that it is a �trusteebody�, and may be regarded as a landowner who owns the foreshore63 and seabed within thelimits of the territorial sea. As this management function also extends to the mines and mineralsunder the soil within the territorial sea, the Crown Estate has also adopted responsibility forlicensing aggregate dredging, and dealing with the quasi-planning matters involved.64 Otherrelevant bodies are concerned with both the terrestrial and marine environment in varyingmeasure (figure 2.1). Some, such as the two Sea Fisheries Committees and the EnvironmentAgency (Wales) have a regional structure, with a primarily Wales responsibility.65 TheCountryside Council for Wales (CCW) is the government�s statutory adviser on natureconservation, landscape and access in Wales, including inshore waters, and has a specificnational remit. Other bodies with a similar focus include the Wales Tourist Board, SportsCouncil for Wales, the Welsh Development Agency (WDA), and Cadw (Welsh HistoricMonuments). The latter is responsible to the NAW for the protection of archaeological areasand historic wrecks in Wales.

There is a second group of bodies, primarily concerned with the reserved affairs of the territorialsea and offshore waters including, to various degrees, international maritime matters. The mainones are the Maritime and Coastguard Agency (MCA), an executive agency of the DfTconcerned with pollution prevention, maritime safety and other matters concerning ports andshipping; the General Lighthouse Authority deals with aids to navigation; and the UKHydrographic Office of the Ministry of Defence (MoD) is a key repository of environmentaldata on the Welsh marine environment.66 The UK Department of Trade and Industry (DTI)deals with development proposals and manages a Strategic Environmental Assessment (SEA)process for the offshore oil and gas industry. Following re-organisation of the Energy Group inthe DTI in August 2002, the Licensing and Consents Unit is responsible for licensingexploration and regulating development of the UK�s oil and gas resources. The newlyestablished Marine Consents and Environment Unit (MCEU) is responsible for issuing consentsfor works in tidal waters and at sea, including marine developments, offshore energy, coastdefences, dredging and waste disposal (section 2.3.1). The DTI has also established theOffshore Renewables Consent Unit (ORCU), which is intended to serve as a focal point foroffshore wind-farm applications. Although the Unit works closely with the MCEU, it merelyhas a coordinating role and the consents procedure still involves the various applications beingconsidered by up to three government departments. It should be noted, however, that theconsents process for planning and development in UK seas and coastal waters may change as aresult of the current DfT-led Review.67

63 Ownership of the foreshore is prima facie vested in the Crown, unless it has passed by grant or possessory title.64 op cit., ref 6, p.26.65 For example, the EA is divided into eight regions: Southern, Thames, South West, Midlands, Anglian, North West,North East, and Environment Agency Wales. The South Wales Sea Fisheries Committee (SWSFC) covers a coastlineof over 683km between Cardiff and Cardigan, while North Wales falls within the geographical remit of the North Westand North Wales Sea Fisheries Committee (NW&NWSFC).66 Other repositories include the Natural Environment Research Council (NERC), British Geological Survey (BGS), andthe Meteorological Office.67 Regulatory Review of Development in Coastal and Marine Waters, Consultation, May 2002. Available atwww.dft.gov.uk

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The current limited role of local government in influencing maritime matters has been discussedin section 2.1.5. There is a marine dimension to many of the functions exercised by localauthorities (e.g. land use planning; waste management and pollution control; technical servicesassociated with highways, drainage and coastal engineering structures). However, authoritiescurrently lack the management resources and may not possess the relevant knowledge andexpertise to deal with maritime matters.68 Furthermore, variations between local authoritystructure has led to different approaches and contrasting emphasis upon maritime functions inneighbouring authorities.69 The implications of extending local authority jurisdiction beyondlow water mark are examined later in this report.

Beyond the statutory players are non-governmental organisations (NGOs) and private interestswith varying degrees of influence over the planning and management of the marineenvironment. Key amongst the latter include the port and harbour authorities. Port conservancyfunctions are well established and can exert considerable influence over other environmentalmanagement priorities. The other NGO interest is the voluntary sector, which includes the foraat national (Wales) and local levels, and sectoral (notably conservation) local and nationalorganisations (figure 2.3). Their main contributions arise from their inclusionary andparticipatory approach to environmental management, which, in some cases, has beeninfluential in determining conservation ideas, priorities and principles.70 Of particular note is therole of the Wales Coastal and Maritime Partnership (section 2.3.1), which was set up in March2002 to replace and build upon the previous pre-NAW Wales Coastal Forum.

A key feature of this management framework are the numerous, diverse plans and programmesimpacting upon the Welsh marine environment (figure 2.1). The gradual proliferation of planshas been described as a major impediment to integration, and is exacerbating the confusion thatalready exists between management bodies, particularly in the coastal zone.71 There isconsiderable scope for coordinating the various types of statutory and non-statutory plans, suchas Local Environment Agency Plans (LEAPs), Shoreline Management Plans (SMPs), EstuaryManagement Plans (EMPs), and development plans. For example, SMPs have direct inter-relationships with voluntary Coastal Zone Management Plans (CZMPs), EMPs and LEAPs, andare intended to be used to provide information to support the preparation of development planpolicies and assist LPAs in determining planning applications in the coastal zone. There are alsoexamples of joint programme planning, such as the Joint Issues Document for the Severn,72

which illustrate the benefits of collaboration.

68 op cit., ref 6, p.27.69 op cit., ref 34, p.85.70 op cit., ref 6, p.30.71 Ballinger, R.C. (2002) An evaluation of integrated coastal management in the United Kingdom. In: Sain, B.C. et al.(eds.) Sustainable coastal management: a Transatlantic and Euro-Mediterranean Perspective. Kluwer AcademicPublishers, pp.75-93.72 Between the Severn Estuary Strategy (SES) and the Severn Local Environment Agency Plan.

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Figure 2.2 Government structure of the NAW relating to coastal and marine issues

22

Figure 2.3 National and regional coastal groups and fora

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2.3 INTEGRATED MANAGEMENT

There is no overall legislative framework for the integrated management of the UK marine andcoastal environment. A range of different statutory and non-statutory instruments covers eitherthe terrestrial or the marine parts of the zone and there is a complex spatial overlap of theseinstruments and in the jurisdiction of the different authorities that are responsible for them.Furthermore, it has been argued that these instruments are not always adequate for their purposeand, being sectoral in nature, impose limitations on the ability of statutory bodies to worktogether, particularly across the land-sea divide.73

2.3.1 Developments in Integrated Management

Recent efforts to coordinate and integrate management effort have yielded some improvements.For example, the Marine Consents and Environment Unit (MCEU) is an alliance of the MarineEnvironment Branch of DEFRA (formerly within MAFF), and Ports Division (CaseworkBranch) of the DfT. The MCEU was established in April 2001 to provide a central facility forreceipt and administration on behalf of both departments of applications to undertake works intidal waters and at sea. The MCEU administers a range of statutory controls that apply to marineworks, including all marine developments, coastal defences, offshore energy, dredging and thedisposal of waste materials at sea in waters around England and Wales for which responsibilityis vested in the Secretary of State for Environment, Food and Rural Affairs; the Secretary ofState for Transport; and the NAW.74 The Unit provides applicants with a single point of contact,the ability to make a one-off application for multiple consents, more integrated administration ofapplicants using a shared consents database, and coordinated consultation arrangements as wellas more holistic scientific assessment of planned works.

The UK government, however, has consistently held the view that coordination of the manyorganisations involved in the management of the coastal zone is best achieved voluntarily andpolicy development has generally used existing mechanisms set out in a series of guidancedocuments. For example, the House of Commons Environment Committee Second Report(1992), although limited in scope to England and the estuaries it shares with Wales (andScotland), made recommendations for the planning and implementation of coastal managementthat have had policy and practical implications throughout the UK. Later in 1992, theDepartment of the Environment (DoE) and the Welsh Office (WO) issued Planning PolicyGuidance: Coastal Planning (PPG 20),75 which made clearer the requirement for planningdecisions to take account of environmental and conservation issues. Subsequently, PolicyGuidelines for the Coast,76 a collation of existing guidance developed under sectoral legislation,was issued by the DoE in 1995. National coastal fora were also set up in England, Wales andScotland, and an Inter-Departmental Group (IDG) on Coastal Policy was established toexchange information on government policy on coastal matters.77

73 op cit., ref 6, p.21.74 It should be noted that the MCEU does not process applications under the Transport and Works Act 1992, which areadministered by the Transport and Works Act Unit at the Office of the Deputy Prime Minister.75 PPG 20 applied to Wales until 1996.76 Department of the Environment (1995) Policy guidelines for the coast. Department of the Environment. HMSO,London.77 The IDG on coastal policy is run by the small Coastal Policy Division that resides within the Wildlife and CountrysideDirectorate of DEFRA, and includes representatives from each central government department and from the NAW (andScottish Executive).

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The Wales Coastal Forum, established in 1997, has recently been replaced by the Welsh Coastaland Maritime Partnership (WCMP), comprising key interest groups from the public, private andvoluntary sectors. Its work programme includes contributing to policy development on thesustainable development and management of the Welsh coastal areas and maritime waters, andconsideration of the EU recommendations on ICZM (see below).78 A part-time officer is basedin the NAW, and the link to government is mostly through the Countryside and Coastal PolicyBranch, which comes under the jurisdiction of the Environment, Planning and TransportDepartment of the Welsh Assembly Government (WAG).79

At the European level, the conclusions of the European Commission�s DemonstrationProgramme on Integrated Coastal Zone Management (ICZM), which ran from 1996 to 1999,have provided fresh impetus to take forward integrated coastal management in the UK. As aresult of this Programme, on 30 May 2002, the EU adopted a Recommendation (2002/413/EC)on implementing ICZM in Europe. This includes a call for national stocktaking by memberstates and the development of national strategies to implement principles for integratedmanagement of the coastal zone. Member states are to report back to the Commission on theirexperience in implementing the Recommendation, 45 months after its adoption. DEFRA and thedevolved administrations have joined together to commission the stocktaking exercise for theUK, which got underway in March 2003.

2.3.2 Sustainable Development and the National Assembly for Wales

The NAW has sustainable development built into its constitution through section 121 of theGovernment of Wales Act 1998, giving it a duty to promote sustainable development in theexercise of its functions. Under the Act, the Assembly is required to devise a Scheme statinghow it proposes to implement the duty (which it did in November 2000), to consult and keep itunder review, publish an annual report on progress, and evaluate its effectiveness every fouryears. The Sustainable Development Scheme commits the Assembly to integrate or�mainstream� sustainable development over time into everything it does, including a review ofall policies, programmes and grant schemes over a five-year period to align them withsustainable development objectives.

The Assembly�s statutory commitment to sustainable development is a unique approach toimplementing the principles agreed upon at the 1992 Earth Summit in Rio and has arguablypaved the way for the EU�s far-reaching Sustainable Development Strategy. Furthermore, at the2002 World Summit on Sustainable Development in Johannesburg, where commitments tosustainable development were made or restated in key areas, the Assembly contributed to theformulation of the Gauteng Declaration, which established a new global network of regionalgovernments committed to sustainable development (NRG4SD).

The Assembly is mainstreaming sustainable development at the strategic level, as reflected inthe Cabinet�s Strategic Plan.80 This has been underpinned by new strategic policies that havebeen developed in parallel with one another, including Wales� new planning guidance, PlanningPolicy Wales, which was published in March 2002. This provides the strategic policy 78 Current work includes consideration of the work of the NAW�s Renewable Energy Working Group, a review of floodand coastal defence funding mechanisms, and the development of sustainability indicators for the coastal environment.79 Gubbay, S. (2002) Just coasting. An assessment of the commitment of the devolved administrations and the Englishregions to Integrated Coastal Management. Report to the Wildlife Trusts and WWF-UK. November 2002, p.17.80 The new strategic agenda of the Welsh Assembly Government, Wales: A Better Country, was published in September2003, and is available at www.wales.gov.uk/themesbettercountry/index.htm

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framework for the effective preparation of local planning authorities� development plans.Chapter 5 concerns �conserving and improving the natural heritage and the coast� and sets outthe Assembly�s objectives for the coast and the actions to be taken by coastal local planningauthorities in preparing their Unitary Development Plans. The Policy also states that localplanning authorities and other agencies and interest groups may cooperate to prepare estuary orcoastal management plans for estuaries and parts of the open coast.

The Policy is supplemented by 20 topic-based Technical Advice Notes (Wales) (TANs),81

which will now be reviewed and revised as appropriate to bring them up to date with PlanningPolicy Wales. Of particular note is TAN 14, Coastal Planning (1998), although several otherTANs may also have increasing relevance in a coastal context, notably TAN 8, RenewableEnergy (1996), which is still awaiting publication in its revised form. TAN 14 recognises thatdevelopments onshore often result in impacts offshore, and that it may be appropriate to define amaritime zone that includes �an area of influence� offshore. Notably, local authorities arerequired to recognise the aims and policies on any coastal zone management plans and considerthe scope for producing a complimentary framework to facilitate implications of such plans, oreven issue supplementary planning guidance that directly links any ICM plan to thedevelopment plan.82

Work is also under way on the preparation of a spatial planning framework for Wales. TheWales Spatial Plan (WSP) will address the strengths and weaknesses of present developmentpatterns, and provide the land use context for achieving the environmental, social and economicobjectives identified in the Assembly�s strategic plan. At the time of writing it remains to beseen whether there will be a coastal or marine dimension to the Plan. A consultation paper onthe aims and purpose of the plan was issued in September 2001, and in light of these responseshas resulted in a draft WSP � People, Places Futures � which, following the consultation, isbeing considered by the WAG.

81 Procedural guidance is given in Welsh Office/NAW circulars.82 op cit., ref 62, p.14.

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3 Issues relating to the existing legislativeframework

3.1 INTRODUCTION

Having reviewed the sources of legislation and administrative arrangements relating to theexisting legislative framework, this chapter commences with a summary of the key limitationsand shortcomings of marine environmental legislation, its implementation and enforcement. Theobservations made are based upon interviews with key stakeholders, and the comprehensivereview and analysis of national (primary and secondary), European and international legislationrelating to the Welsh marine and coastal environment.83 As previously illustrated, marineenvironmental legislation covers a wide range of areas which means that the substance oflegislation is often very different. There are, however, characteristics that are common to all,and these over-arching issues are identified before discussing issues relating specifically to theNational Assembly for Wales and the adequacy of the legislative framework for the Welshcoastal and marine environment. The case for reform of marine legislation is stated, drawingupon recent government commitments to review the current marine regulatory framework forspecific sectors. Examples of international initiatives involving integrated coastal and marinemanagement are then discussed, highlighting some of the main lessons that can be drawn fromthis international experience.

3.2 OVER-ARCHING ISSUES RELATING TO MARINE ENVIRONMENTAL

LEGISLATION

3.2.1 Complex tiers of rules

Primary legislation is frequently of an enabling kind. Much of the detail of environmentalstatutes is left to be worked out in delegated legislation, some of which is devolved to the NAW.There is no typical type of delegated legislation, and detailed laws may be formulated asregulations, rules, orders and schemes. This is particularly evident with respect to some of themain pieces of legislation affecting the marine environment, such as the EnvironmentalProtection Act 1990, the Water Resources Act 1991, the Environment Act 1995, the Townand Country Planning Act 1990, and the Pollution Prevention and Control Act 1999.84 Inthese cases, the statute merely provides a limited description of the law, while the detail is laiddown in secondary legislation in the form of statutory instruments (SIs), which also addressprocedural matters. It is the secondary law that must be scrutinised to determine whether apower has actually been used. Much of this secondary legislation is often technical andcomplex, and there is a further tier of rules in the form of tertiary or quasi legislation. Thisusually comprises different forms of guidance, circulars and other technical advice relating tothe legislation. This approach to legislating has become commonplace for the marineenvironment because it provides a simple, flexible and efficient way of expanding upon basicstatutory concepts. A further subdivision into general and local legislation further complicatesmatters.

83 The review of legislation and analysis of issues has been researched as background to this study and written up forthe workshop as separate �topic papers�, addressing each individual sector.84 Bell, S. & McGillivray, D. (2000) Environmental law. The law and policy relating to the protection of the environment.5th edition. Blackstone Press, London, p.61.

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The implication of this approach is that it is often difficult to find out about a law on a particularissue, in anything than a very general manner. The basic statute has to be supplemented withspecific technical guidance, which makes it difficult for the lay person to understand and isoften only known to the authorities that they directly empower. However, as the interviewsdemonstrated, it is not uncommon even for the authorities themselves to be unaware of thestatutory basis of their own functions. A further implication is that the informal rules andguidance can often have greater practical significance than the actual legislation. As noted byGibson,85 �the mere spectre of law appears to exercise a paralysing influence on executivediscretion.� Consequently, it is often easier to achieve an objective independently of legalmeans, as illustrated by the designation of voluntary marine nature reserves in areas where it hasnot been possible to establish their statutory equivalent, and the designation of non-statutoryHeritage Coasts.

3.2.2 Specificity

Allied to the complexity described above is the issue of specificity. Legal statutes, throughnecessity, invite specialisation, corresponding to the particular sectional issue being addressed.Consequently, legislation relating to many coastal and maritime issues must be abstracted froma wide variety of legal categories and sources, which do not for example recognise the coastalzone as a separate legislative jurisdiction. Relevant statutes may therefore be found underadministrative, admiralty and constitutional law, and in the law relating to individual sectorssuch as conservation, customs, fisheries, local government, minerals, petroleum, planning, ports,public health, shipping and water resources. These areas encompass both private and public law,property law and case law. There is often additional complication as a result of the tripartitedivision between terra firma, foreshore and seabed, especially in the coastal zone where thelegal regime relates to all three. The predominantly statutory body of public law relates to amultiplicity of central government departments, local authorities and quasi-governmentalbodies, the functions of which are often divided between those that are essentially land-basedand those with marine jurisdiction.86

3.2.3 CommencementPrimary legislation generally requires enactment by secondary legislation before it can enterinto force. For example, Part II of the Control of Pollution Act 1974 relating to water pollutiondid not enter into force until 1986, and some parts of the Act were never introduced (e.g.s.46(1)-(3)). This piecemeal introduction of different provisions obscures the purpose of the Actand causes confusion for regulatory bodies and stakeholders. Other Acts rely upon aCommencement Order for their implementation. This approach was taken with theEnvironment Act 1995 and the Environment Protection Act 1990, which resulted in thewaste management licensing provisions not entering into force until 1994.

3.2.4 Language

A problematic aspect of marine environmental legislation is the legal terminology used, whichis strongly resistant to idiomatic change and contributes little to stakeholders� understanding ofthe legislation. Clearly, the wording of the legislation itself should not influence the nature ofthe authority it transmits, yet the legislature has displayed consistent difficulties in coming toterms with issues involving boundaries of a geographical, jurisdictional and conceptual kindfrequently encountered in the coastal and marine environment.87 The measure of technicality

85 Gibson, J. (2003) UK coastal zone law notes: (17) Conclusion. Institute of Marine and Environmental Law, Universityof Cape Town. Web resource. Accessed 20/10/03.

Available at: http://web.uct.ac.za/depts/pbl/jbibson/iczm/notes/note15.htm86 ibid.87 ibid.

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introduced into statutes affecting this area is evident from the number and length of circulars,which government departments feel necessary to explain and interpret the legislation.

Allied to this issue is the problem that definitions are often left unclear in the legislation,normally to allow flexibility in the application of the law. For example, it is an offence underthe Water Resources Act 1991, s.85, to �cause or knowingly permit any discharge of trade orsewage effluent into controlled waters.� The word �discharge� is not defined in the Act, and iscapable of carrying either an active meaning (i.e. a deliberate trade or sewage process) or apassive meaning (as in an accidental release or leakage). The latter implies that potentialdischargers are in the impossible position of having to apply for a consent for something that isnot meant to occur. Accidental or non-routine discharges are nevertheless covered by thegeneral water pollution offence under s.85 of the Act, which prohibits causing or knowinglypermitting any poisonous, noxious or polluting matter or any solid waste to enter controlledwaters. However, in common with other flexible definitions within the Act, the words�poisonous, noxious or polluting� are not defined. In several other Acts affecting the coastal andmarine environment terminology has either been clarified by case law, or interpretation of keyterms has been left to guidance documents. This essentially relegates important legislativeconsiderations to matters of administrative discretion.

3.2.5 Discretions

A common feature of legislation affecting the coastal and marine environment is that ofdiscretionary decision-making. Discretions are often issued in relation to setting of dischargestandards, designation of areas for special protection, and with respect to the enforcement oflegislation. It has been noted that in the past, it has been normal for environmental legislation togrant public bodies or agencies, such as the EA, a large amount of discretion, often in the formof a subjective power which is then regulated by the courts.88 However, many agencies,including the EA, have structured the exercise of their discretion through internal agencyguidelines and strategies, thereby formalising the system. Moreover, greater powers are beingreserved by central government with respect to the sort of considerations to be taken intoaccount when exercising the power of discretion. For example, s.39 of the Environment Act1995 dictates that the EA take into account the likely costs and benefits before making decisionsand the general functions of the Agency are effectively decided by guidance and directionsissued by central government.

3.3 ISSUES RELATING TO THE NATIONAL ASSMEBLY FOR WALES

• Uniquely among EU nations, the NAW has a cross-cutting duty under section 121 of theGovernment of Wales Act 1998 to promote sustainable development in the exercise of allits functions. The Sustainable Development Scheme outlines how it proposes to implementthe duty, and an initial set of 12 sustainable development indicators have been proposed tomeasure progress (section 2.3.2). These do not currently include any marine or coastalindicators, but a working party will shortly reconvene to revise them.

• Although the NAW has responsibility in some fields that are significant for coastal andmarine management, and has some powers to make secondary legislation for the WTS inthe form of SIs, it cannot pass primary legislation for Wales and does not have anyexercisable powers beyond 12nm. Furthermore, secondary legislative powers are limited inscope by the terms of the Acts that created them. Consequently, the NAW is not free toenact on every matter affecting Wales and there are often restrictions on the powers of the

88 op cit., ref 2, p.63.

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NAW in relation to certain provisions. Important exclusions from the NAW�s remit includemerchant shipping, oil and gas development, and defence.

• Some of the more significant planning decisions are reserved by Westminster, and the UKgovernment retains the right to �call in� certain important decisions. For example, anyelectricity generating development capable of supplying more than 50MW of electricalpower (terrestrial) and 1 MW (marine) must have planning permission from the DTI.Arguably this dilutes the NAW�s commitment to sustainable development, since the way inwhich energy is generated has major implications for sustainable development.

• There has been little consistency in the way additional powers have been conferredpiecemeal upon the NAW, resulting in different provisions for the exercise of ministerialcompetencies within many of the Acts of Parliament. Each Act differs in the extent to whichthe NAW is given powers, and some functions are exercisable wholly by the NAW, orpartly by the NAW and partly by central government, or by the NAW together withministers. There are no general principles in this respect, resulting in an extremely complexlegislative picture. Even in instances where powers have been conferred directly on theNAW by primary legislation, a number of different approaches have been adopted resultingin difficulties in identifying those aspects of a Bill that affect Wales. It follows that theTransfer of Functions Orders are no longer reflective of the powers of the NAW.

• Arguably, there has been some erosion of the NAW�s powers. In some cases this occurswhen equivalent powers change when legislation is replaced. For example, the powersunder Part I of the Environmental Protection Act (EPA) 1990 were transferred to theNAW. However as these regulations are being replaced by regulations under the PollutionPrevention and Control Act 1999 the equivalent powers revert to Westminster.

3.4 ADEQUACY OF LEGISLATION

3.4.1 Sectoral Approach

• The tendency to develop ad hoc solution to problems as, and when, they arise has resultedin a sectoral approach to the management of the Welsh marine environment. Most of theprincipal uses of the marine environment are governed by Acts of Parliament, which oftenfail to recognise the inter-relationship with legislation in other sectors. The House ofCommons Select Committee noted more than 80 such pieces of primary legislation relatingto coastal matters in England and Wales alone, highlighting the complexity and sectoralnature of laws relevant to the management of the UK coast.

• This is further complicated by a vast body of secondary legislation that could potentially beof relevance to coastal and marine management in Wales. This includes secondarylegislation relating to both England and Wales, and the separate SIs enacted by the NAW.Furthermore, there appears to be little vertical (at different spatial scales) or horizontal(across sectors) integration of these instruments, which some argue has led to fragmentedcontrol of the Welsh marine environment.

• The complexity of the plethora of regulations has inevitably resulted in omissions andoverlap in the marine legislative framework, some of which may be attributed to limitedreference to the coast or marine environment within more terrestrially focused legislation(see below). For example, according to DEFRA�s interim report on the Review of MarineNature Conservation89, there is no effective delivery mechanism for around 40 per cent of

89 DEFRA (2001) Review of Marine Nature Conservation (RMNC) � Interim report. DEFRA, March 2001.

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specified site-based actions for habitats and species under the Natura 2000 network. Thisarises due to significant gaps in coverage of marine habitats and species by the HabitatsDirective, reinforced by shortcomings and gaps in existing measures for speciesconservation and management of the wider sea. An example of overlapping legislation canbe found in the management of inshore fisheries, the administration and enforcement ofwhich is the responsibility of the Sea Fisheries Committees under the Sea FisheriesRegulation Act 1966. However, fishing for diadromous fish species such as salmon, sea-trout and eels is also regulated by the Environment Agency (Wales) under the Salmon andFreshwater Fisheries Act 1975.

• Nevertheless, the sectoral approach to legislating is well-established and understood and is astraightforward means of responding to specific events, pressures or new legal obligations,by adding piecemeal to existing regulations. Furthermore, in some sectors much of the(secondary) legislation is underpinned by a whole raft of policy initiatives, which enablegreater flexibility and provide a new dimension to the legislation. For example, Wales� newplanning guidance, Planning Policy Wales, and the supplemental 20-topic-based TechnicalAdvice Notes (Wales) (TANs) provide the strategic policy framework for the effectivepreparation of local planning authorities� development plans.

• It should be noted, however, that the piecemeal approach described above to amendingexisting legislation, implies that much of the primary legislation governing some sectors hasbeen in place for many years and may no longer be fit for purpose. For example, the mainActs governing inshore fisheries (notably the Sea Fisheries Regulation Act 1966; SeaFisheries (Conservation) Act 1967; and the Sea Fisheries (Shellfish) Act 1967) date fromthe mid-1960s, and have been overtaken by more recent development in the managementand conservation of fish. It has also been claimed that the efficiency and effectiveness of theSea Fisheries Committees� work is hampered and constrained by inadequate powersstemming from outdated legislation. Furthermore, the Coast Protection Act has not beenupdated since 1949, and is out-dated to deal with some current development pressures, suchas marine renewable energy projects (see below).

• The complex structure of the regulatory regime makes it slow to react to new activities orpressures. In particular, potential developers of marine renewable energy projects faceproblems and frustrations caused by the disjointed marine regulatory structure, ashighlighted by the first licensing round for offshore wind. None of the current legislationused to license this activity (i.e. the Coast Protection Act 1949; Electricity Act 1989;Transport & Works Act 1992; and Part II of the Food and Environmental ProtectionAct 1985) was specifically drafted with respect to marine renewables. For example,Schedule 8 of the Electricity Act 1989 requires developers to serve notice of a Section 36application for consenting offshore generation upon the relevant planning authority, whocan object to a proposal and force a public inquiry. However, it can be argued that there isno relevant planning authority for offshore renewables, since the jurisdiction of localauthorities generally terminates at the low water mark. Furthermore, there is nocomprehensive legal framework beyond the limits of territorial waters for regulatingdevelopment of the resource, or for granting developers security over a site.

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3.4.2 Implementation and Enforcement

• There are several difficulties complicating the effectiveness and enforcement of legislationin the marine environment, particularly beyond controlled waters. Some of the problems areorganisational (e.g. bodies that lack appropriate powers, or a reliance on those whose majorconcerns are with other sector-specific matters e.g. ports and shipping), or can be attributedto the distinct jurisdictional boundaries between land and sea (see below). As illustrated infigure 2.1, the different sectors are controlled to a varying extent and distance from theshore.

• As indicated above, a plethora of agencies and other bodies are involved in an array ofterrestrial and marine sectors and are responsible for the management of many differentactivities. Because the functions of these authorities/agencies are often defined bylegislation, there may be constraints upon their ability to cooperate with others in the marineenvironment if their statutory powers and duties are expressed in narrow sectoral terms. Forexample, prior to 1992, most harbour authorities had no statutory powers to promote natureconservation, and were solely concerned with the interests of commercial navigation.However, the Transport and Works Act 1992 amended the Harbours Act 1964 to place astatutory duty upon harbours authorities to take nature conservation into account whenexercising their functions.

• There are also perceived to be basic problems in enforcing legislation in a dynamicenvironment. For example, the jurisdiction of the Sea Fisheries Committees extends only to6nm from the coast, whereas important fish stocks are clearly not confined to this zone. Thesituation in Wales is further complicated by the region being split into two SFC Districts,the South Wales Sea Fisheries Committee and the North Wales and North West SeaFisheries Committee (NW&NWSFC), and the fact that the latter has responsibility for areasin both Wales and England. The NW&NWSFC must therefore implement the secondarylegislation of the NAW within Welsh waters, and separate measures relating to England andWales beyond these areas, despite the biogeographical similarity of the Districts. Theimplication is that different measures may apply to the same stocks of fish, thus reducingthe effectiveness of management effort. Enforcing regulations for the fishing industry is alsodifficult due to the geographical area, which is large both in terms of size of coastal watersand number of potential landing sites.

• There are also inconsistencies between England and Wales in the implementation oflegislation, which is sometimes further complicated by differences in jurisdictionalboundaries. For example, amendments made to the Conservation (Natural Habitats &c)Regulations in England in 2000 gave candidate Special Areas of Conservation (cSACs)legal status, while in Wales similar amendments were not made and cSACs are not affordedthe same level of protection. It has been argued that this divergence could undermine theachievement by the UK of European requirements. This also raises issues for CompetentAuthorities that operate in both England and Wales (such as the Environment Agency), inmaintaining consistency across the organisation, particularly when implementing theRegulations with respect to cross-border sites. Also relating to the Habitats Directive 1992,a Court decision in 1999 made it clear that the provisions of the Directive apply beyond theterritorial sea. However, CCW�s functions are restricted to an advisory role beyond the 12-mile limit.

• It is worth highlighting an example relating to the preparation of development plans wherean inconsistency arising from amended legislation reflects positively upon Wales.Preparation of such plans under the Town and Country Planning Act 1990 is intended to

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be open and transparent, but in 1999 procedures in England were revised and consultationrequirements reduced. Although the Environment Agency remains a statutory consultee onstructure plans, the statutory requirement for Local Planning Authorities (LPAs) to consulton Unitary Development Plans (UDPs) and local plans has been abandoned. It has beenreplaced by �strong� advice for consultation over a wide range of department andorganisations (including the EA), despite PPG 12, Development Plans, making it clear thatcoast protection, flood defence and land instability are all issues for which policies shouldbe stated in development plans. In contrast, recent guidance from the NAW indicates thateach Welsh LPA must consult EA (Wales) and take their representations into accountbefore determining the contents of their UDP.

• Another problem is that estuaries have traditionally been used as jurisdictional boundariesbetween local government areas, which results in more than one authority havingresponsibility for the same natural ecosystem. For example, Section 151(2) of theGovernment of Wales Act 1998 provides for the determination of the WTS, consistentwith the established agreement for the delimitation of international boundaries. However,the border in the Severn Estuary passes midway between the islands of Flat Holm and SteepHolm, ignoring the fact that this area of the Severn is already inside the local governmentboundaries of Bristol. Further divergence in the planning system between England andWales, brought about by reform of the two-tier system in favour of a regional devolvedframework in England, could have significant implications for cross-border sites such as theDee and Severn Estuaries.

3.4.3 Lack of Integration/Strategic Framework

• There is no overall legislative framework for the integrated management of the marine andcoastal environment. A range of different statutory and non-statutory instruments covereither the terrestrial or marine parts of the zone and there is a complex spatial overlap ofthese instruments and in the jurisdiction of the different authorities that are responsible forthem. There has not been a systematic and coordinated approach or the emergence of anyoverall vision and objectives for the integrated management of the coastal and marineenvironment. For example, there is no lead department on coastal and marine issues withinthe NAW, and roles with respect to the marine environment are shared across Agricultureand Rural Affairs, the Culture and Recreation Division, the Animal and Plant Health,Fisheries and Countryside Division (APHFCD), the Planning Division, Transport PolicyDivision and Environment Division. Interaction between these Divisions is mainly throughbilateral meetings. This lack of integration across administrative boundaries has beencriticised as an impediment to the effective management of the marine and coastalenvironment.

• There is a dichotomy between terrestrial laws and those that apply to the marineenvironment that militates against integrated management. The jurisdiction of localauthorities generally to low water mark arguably limits the ability of land-based regimes torespond to marine issues. In particular, the planning system established under the Town andCountry Planning Act 1990 is essentially terrestrial and does not normally extend belowthe mean low water mark, although planning authorities are required to take account ofPlanning Policy Wales, which recognises the potential impact of land use on the marineenvironment. It is apparent, therefore, that the role of local authorities is largely confined tothe terrestrial environment, while the management of the marine environment remains thepreserve of central and regional government.

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• Below low water mark there is no equivalent to the Town and Country Planning system ofdevelopment control that brings together much of the regulation over a wide range ofactivities in a common framework. As previously indicated, the legislative and managementregimes for marine activities are largely sectoral, although recent efforts to coordinate andintegrate the consents process for offshore development have benefited from the formationof the Marine Consents and Environment Unit (MCEU) at Central Government level. TheMCEU provides a single point of contact for applications and administers a range ofstatutory controls that apply to marine works, including all marine developments, coastaldefences, offshore energy, dredging and disposal of waste materials in waters aroundEngland and Wales for which responsibility is vested in the Secretary of State forEnvironment, Food and Rural Affairs, the Secretary of State for Transport, and the NAW.However, there is also another body, the Offshore Renewables Consents Unit (ORCU) setup by DTI, DEFRA and the (then) DTLR to streamline consenting processes for offshorerenewables.

• Coordination of the many organisations involved in the management of the coastal zone hastraditionally been addressed on a voluntary basis and policy development has generally usedexisting mechanisms set out in a series of guidance documents. The difficulty with thisapproach, however, is that existing laws may not always be adequate for the purpose andmay impose limitations on the ability of authorities and agencies to work towards integratedmanagement.

3.5 NEED FOR REFORM

As discussed in previous sections, marine legislation and planning has been largely developedon a sector-by-sector basis in response to specific problems or issues or to implement legislativeobligations imposed by the EU and international agreements. This has taken place in theabsence of any overall vision or strategy for sustainable management of the marineenvironment. These problems were recognised in the government�s own Review of MarineNature Conservation (RMNC),90 which reported in 2001:

�the management and consenting regimes for activities potentially damaging to the marineenvironment are largely sectoral and environmental considerations are predominantlyincidental to the main purpose and powers of the bodies which operate them�.

The Report also highlighted:

�...variations in the interpretation of environmental powers and duties, leading toinconsistencies in the application of conservation objectives between regulators�

�...duplication of powers and confusion over what consents may be required for particularactivities or developments�

�...gaps in the regulation which if recognised have generally been filled in an ad hocmanner without reference to any overall framework�.

90 The Review of Marine Nature Conservation is assessing the success of previous statutory and voluntary marineconservation measures and identifying examples of current best practice and barriers to successful marineconservation. The main aim of the Review is to put forward practical and proportionate proposals for improving marinenature conservation, working with key economic sectors and other stakeholders. The results were due to be available inJune 2004.

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Such a sectoral approach is complicated, ineffective and expensive to enforce, not least becausethe marine environment is dynamic and has no defined boundaries. There is also the addedproblem of addressing the additional dimensions present in the marine environment � i.e. theseabed, the water column and the sea surface, and the atmosphere above it. These problemshave been compounded by the fact that no single government department or inter-departmentalcommittee has overall responsibility for the management and health of the marine environment,or a complete overview of all the pressures and problems. The interim report of the RMNCrecommended that �there should be a further drive to rationalise regulation, especially in coastalwaters�, and that �an exercise should be undertaken to identify best practice in marineenforcement, both at home and abroad�.

Some progress has already been made in this respect, for example through the creation of thecross-departmental Marine Consents and Environment Unit (MCEU), and in the form ofrecognition by the government that the complexity of the current consenting regime for themarine environment needs to be remedied. This is being addressed through the Department forTransport�s (DfT) review of development in coastal and marine waters, which is tasked with:• identifying essential principles to underpin the development regime and assessing how far

these are currently met;• making proposals for simplifying and reducing the cost and burden of existing consent

processes in the short term; and• making recommendations for longer term reforms with the objective of delivering

sustainable development through a modern, transparent, efficient and effective coastal andmarine development system.

The Review covers England and Wales, initially focusing on, but not limited to, coastal waters.It is expected that the Review will examine current and future regulatory proposals to ensureconsistence with the government�s Better Regulation objectives. Specific proposals forstreamlining and reducing the number of regulations, consolidating separate consent proceduresand regimes, and improved coordination and cooperation between regulators and developerswould be welcome. However, this should not be at the expense of the marine environment, andshould not shift the balance in favour of the developer. Arguably the Review should have awider remit, covering not only DfT and DEFRA consents, but the whole range of other consentsapplicable in the coastal and marine environment. This would be consistent with the concept ofintegrated coastal and marine management and the EU Recommendation on the Implementationof ICZM.

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Box 3.1 Commitments to review, or recent reviews, of the current marine regulatoryframework91 (source: adapted from Linley-Adams, 200392)

Integrated Coastal Zone Management�We will review the regulatory framework affecting development in the coastal area with a view tosimplifying the regulatory system and protecting the marine environment.��We will also undertake a comprehensive factual review of all the institutions, laws and stakeholdersthat influence our coastal areas.�

Shipping and Ports�We will review the regulatory framework affecting coastal and marine development, including ports,with a view to simplifying the regulatory system and protecting the marine environment.�

Offshore Oil and Gas�We shall continue to develop by 2003 an integrated comprehensive environmental regulatoryregime that is seamless from pre-licensing through exploration development and eventualdecommissioning.�

Offshore Renewable EnergyBeyond territorial waters:�Current legislation fails to provide a firm basis for developments beyond territorial waters�The DTIacknowledges that primary legislation will be required.�

Within territorial waters:�We will examine how to improve coordination of the granting of consents between governmentdepartments for activities that affect the seabed and how the granting of individual consents might bemade more efficient.�

Aggregate Dredging�We will shortly replace the non-statutory Government View Procedure with a statutory process��

Nature Conservation�Action is required to address nature conservation in the marine environment. Retention of the statusquo is not an option.�93

�We will apply the Habitats and Birds Directives out to the limit of jurisdiction of UK waters anddesignate SACs and SPAs.��Work is under way to develop legislation to apply the Habitats and Birds Directives beyond territorialwaters. We expect to consult on regulations later in the year.��We will explore with other countries, and through appropriate international bodies, the case for, andthe feasibility of, marine protected areas on the high seas�.

Bylaws�We will produce a guide for local authorities explaining the range of powers open to them and intendto look at new legislation when Parliamentary time permits�.

In spite of these developments, it is evident that further progress is required to achieve theunified approach to coastal and marine management adopted by some progressive countries

91 All quotations are taken from the following report, unless referenced otherwise. DEFRA (2002) Safeguarding ourseas: a strategy for the conservation and sustainable development of our marine environment. The first MarineStewardship Report. DEFRA, May 2002.92 Linley-Adams, G. (2003) All at sea: UK marine planning and management. Report to WWF-UK, September 2003,p.3493 op cit., ref 7.

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(section 3.5). Environmental NGOs in the UK, and WWF in particular, have campaigned forseveral years for simplification of the overlapping jurisdictions in the coastal zone and haveargued for a more integrated approach to marine policy.94 WWF has renewed its call for moreeffective and sustainable management of the marine environment, based on the ecosystemapproach, through the creation of a single cohesive and comprehensive piece of legislation inthe form of a UK Marine Act. WWF proposes that the Act should consist of a single piece ofprimary legislation with supporting legislation, some of which may be amendments to existinginstruments. The Act itself would identify the vision and key principles of governance for themarine environment, establish a duty of care on public authorities to align decisions, amend orrepeal existing inappropriate legislation, enable the creation of further legislation under it, andcould create a marine authority with responsibility for coordination of activities. By overseeingthe myriad of activities through joined-up governance and improved legislation, WWF believesthat a Marine Act would not only help to manage the competing demands upon the marineenvironment in a more holistic way, but also minimise pressures on habitats and species, andhelp where these activities conflict with one another.95

The government has responded by stating that it would first need to consider the content of anypossible legislation and what value it would add. However, it also re-stated its view that thepreferred approach is to achieve as much as possible without primary legislation �so that scarceParliamentary time is reserved for those issues which do need legislation on the grounds thatother routes have failed to deliver the desired effect�.96 Nevertheless, the government hasalready, across a number of sectors, either undertaken a review, or has committed itself toreviewing the existing regulatory framework in the near future97 (box 3.1).

3.6 LESSONS FROM INTERNATIONAL PRACTICE

There has been a significant growth in coastal and ocean management initiatives over recentdecades. A recent study reports that 98 nations are engaged in initiatives involving integratedcoastal and wider marine management at a national or local level, and that almost half of thesecountries are employing some form of coordinating mechanism for ocean and coastalmanagement.98 Similarly, an earlier study claimed that more than 30 per cent of coastalsovereign states had initiated some type of integrated coastal management programme by theend of the 1990s.99 Many of these initiatives, however, focus on the narrowly defined terrestrialzone adjacent to the sea and inshore waters, with limited consideration given to extendingpolicies and plans to include the offshore marine environment.

The approaches adopted by countries such as Australia, Canada, New Zealand and certainAmerican and European states, among others, have been reviewed in detail in several previous

94 op cit., ref 10, p.33.95 WWF-UK (2003) WWF Oceans Recovery Seminar � discussion document.96 DEFRA (2002) Seas of Change. The Government�s consultation paper to help deliver our vision for the marineenvironment. Department for Environment, Food and Rural Affairs, November 2002, p.4.97 op cit., ref 9, p.34.98 Cicin-Sain, B. et al. (2001) Global and regional trends in efforts at integrated coastal management. GlobalConference on Oceans and Coasts at Rio+10, towards the 2002 World Summit on Sustainable Development,Johannesburg: assessing progress, addressing continuing and new challenges. UNESCO, Paris.99 Hinrichsen, D. (1998) Coastal waters of the world: trends, threats and strategies. Island Press, Washington D.C.Cited in: Cardiff University (2001) Analysis of options for improving the planning and management of the Walesterritorial sea. Report to the Countryside Council for Wales (CCW), February 2001.

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reports (for example, Gibson, 1999100; Hershman, et al., 1999101; McGarvin, 2000102; CardiffUniversity, 2001103). In particular, Cardiff University in its analysis of options for improving theplanning and management of the Wales Territorial Sea, reviewed a wide range of institutionalapproaches that ranged from sectoral approaches (Denmark), through extensions of land-basedmanagement and planning, to offshore multi-sectoral and coastal/marine specific programmes,including those which are attempting to coordinate coastal, territorial sea and EEZ management(Oregon State). The review also considered programmes, such as those in New Zealand andTasmania, which have been developed within the context of a broader national approach forintegrated resource management. Table 4.1 summarises the major lessons to be learned fromthese international case studies, as identified by Cardiff University.

The diversity of approaches followed demonstrates the variety of legal and non-statutoryinstruments available for the purposes of integrated marine and coastal management. No singleapproach is clearly superior to all the others, and countries have chosen those that they considermost appropriate to their own legal and administrative systems. The adoption of the ecosystemapproach to the management of the marine environment is a driving force behind many of theselegislative and policy initiatives, as is recognition of the opportunities and potential for theeconomic, social and environmental benefits that the marine environment can provide.

The example of the United States, which pioneered the concept of Integrated Coastal ZoneManagement (ICZM), demonstrates the importance of diversity and flexibility within a federalstructure. A broad definition of the coastal zone at federal level allows individual states to adoptmore precise boundaries to suit their particular geographical circumstances. The US CoastalZone Management Act 1972 sets out the basic objectives of ICZM, and requires states to drawup coastal management programmes that will meet those objectives. It does not force states todevelop programmes, but provides incentives for them to do so by offering the benefits offinancial grants and �federal consistency�. Each state is free to choose its own method ofimplementation, and these include comprehensive ICZM legislation, framework acts and non-statutory coordination schemes. There is no necessity for every state to have an identical system,provided that the methods they adopt work and are capable of operating in harmony for thebenefit of the coastal zone as a whole.104

Ocean planning and management in Oregon (box 3.2) has evolved from strong public interestsin the use and protection of coastal resources. These interests began before statehood, havespanned many governors and legislative sessions, and have always involved the public.105

Taking advantage of funding opportunities under the US CZM Act, Oregon has gainedadditional resources for undertaking coastal management and ensured federal actions do notundermine state objectives. The adaptive management approach that has evolved has delivered a

100 Gibson, J. (1999) Legal and regulatory bodies: appropriateness to integrated coastal zone management. Final reportto the European Commission � DG XI.D.�. MacAlister Elliot and Partners Ltd, Lymington. October 1999.101 Hershman, M.J. et al. (1999) The effectiveness of coastal zone management in the United States. CoastalManagement, 27, p.113-138.102 MacGarvin, M. (2000) A Marine Act for the United Kingdom? Report to WWF-UK. Modus vivendi, December 2000.103 Cardiff University (2001) Analysis of options for improving the planning and management of the Wales territorial sea.Report to the Countryside Council for Wales (CCW), February 2001.104 op cit., ref 18, pp.28-33.105 The roots of Oregon�s Ocean Resources Management Program reach back to the early 1970s when concerns wereraised over effects from potential drilling for oil and gas in federal waters and foreign fishing fleets working to withinthree miles of shore. The Oregon Coastal Conservation and Development Commission (OCC&DC), created by the 1971legislature, first addressed ocean concerns in the context of an overall plan for the Oregon coast. The work of theOCC&DC became the foundation for the coastal planning goals under the 1973 state-wide planning law that created theLand Conservation and Development Commission (LCDC).

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wide range of improvements, including the maintenance of various advisory groups, increasedcapacity in local resource management decision-making and improved inter-level governmentalintegration. The widely acclaimed success of Oregon�s programme can be attributed to:• its highly structured process;• its effective use of state officials, local leaders and citizens;• high level agency support;• its emphasis upon sustainability and management by objectives rather than conflict

resolution;• its use of an ecosystem approach; and• a democratically accountable system for decision-making.

However, close examination of issues such as shoreline management reveals continued conflict,suggesting sub-optimal inter-sectoral and inter-agency integration, with limitations inorganisational capacity, economic resources, funding and staff capacity. In addition, while itappears that Oregon�s arrangements are highly successful in dealing with the effects of land-based development offshore, their success in dealing with developments crossing the land-seaboundary or offshore is less clear.106

The Portuguese (box 3.3) approach to coastal zone legislation is instructive because it hasattempted to cross the jurisdictional divide between land and sea and to provide a combinedapproach to coastal planning. It is, however, limited to a narrow strip of coastal land and water,and imposes uniform national policies upon local planning authorities. The preparation andapproval of coastal plans has also involved considerable delay in practice, and conflicts havearisen between coastal plans and municipal plans as a result of overlapping areas and differentobjectives. It is also apparent that statutory land use planning procedures alone have not beensufficient to resolve problems caused by a complex jurisdictional and institutional frameworkand by a lack of coordination between agencies.

106 op cit., ref 21, p.49.

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Box 3.2 Oregon Ocean-Coastal Management Program

The regime for offshore management in Oregon is complex. It comprises land and sea-basedprogrammes, including the Coastal Management Program (CMP) undertaken as part of the state-wide spatial land use planning system, as well as the Oregon Ocean Resources ManagementProgram (ORMP), an interagency programme created by 1987 and 1991 legislatures (ORS196.415) to assure conservation and development of ocean resources. Oregon has implemented theUS Coastal Zone Management Act through the non-statutory CMP, which covers territorial watersand addresses a wide range of coastal uses. The CMP, overlapping with a range of Oregon statelaws related to resource management, is supported by a complex regulatory system and involves arange of state agencies. It also forms part of the state-wide spatial planning system establishedunder the Oregon Land Use Planning Act, which defines four planning goals in relation to coastaland/or ocean resources.

The Oregon Ocean Resources Management (OORM) Act 1997 established clear priorities for oceanuse and activities within an Ocean Stewardship Area

107 as well as creating the legislative

framework for the multi-interest, inter-agency ORMP. This has included the development of theOregon Ocean Resources Management Plan for territorial waters and the Exclusive EconomicZone (EEZ), which provides an analysis of the offshore legal framework as well as addressingpresent and future ocean uses and management regimes. The Ocean Plan, as it is known, wasprepared by the 1987 Oregon Ocean Resources Task Force. The more detailed Territorial SeaManagement Plan relates to state territorial waters (three nautical miles) and complements the land-based spatial plans. The plan was adopted in 1994 by the Ocean Policy Advisory Council (OPAC)and approved as part of the state�s Coastal Management Plan and was amended in late 2000.

The programmes are inter-linked and delivered through existing agencies within a partnership andhighly participatory management regime. The OPAC includes representation from almost allagencies with direct authority over management, policy or programmes that affect the marineenvironment, and also has non-agency members representing interests as diverse as coastal tribes,coastal cities and counties, ports, commercial and recreational fishermen, and the public at large.The OPAC has no authority to directly regulate ocean activities or manage resources or to enforce itsplans or policies. However, once its plans and policies are approved by the Land Conservation andDevelopment Commission as part of Oregon�s CMP, the various state agencies are required to carrythem out or act consistently with them. The Department of Land Conservation and Development(DLCD) is the focal point for the Oregon Ocean Program. DLCD staffs the work of the OPAC,coordinates with the Office of the Governor and other state and federal agencies in response toissues or activities, and applies for and administers grant funds from various sources for programmeactivities within DLCD and other state agencies. DLCD uses its authority under the Federal CoastalZone Management Act to review and approve the �consistency� determinations of federal agencieswhen their actions affect Oregon�s ocean resources.

107 The Ocean Stewardship Area extends seawards from the MHW to a width of between 35 and 80 miles and to adepth of 2200 to 3000m.

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Box 3.3 Portugal: Terrestrial and maritime zone of protection

In addition to general land-use planning, there are two specific enactments relating to coastalplanning in Portugal. Decree-Law 302/90 is essentially terrestrial in focus, and seeks to implementthe objectives of the European Coastal Charter adopted by the Conference of Peripheral MaritimeRegions of Europe in 1981. It defines a coastal strip extending 2km inland from the line of the highestequinoctial tides, and prescribes national policies for the occupation, use and development of thatzone, which must be followed by the authorities responsible for licensing and planning.

The more ambitious Decree-Law 309/93 addresses the planning of both land and sea areas, andprovides for the preparation of coastal strip classification plans. These plans can apply to a terrestrialzone of protection which may extend up to 500m inland from the water�s edge, and also to a marinezone of protection extending seawards up to a maximum depth of 30m.

108 Plans are prepared at

central government level by the national Water Institute, assisted by a technical commissionrepresenting national and local authorities. Plans are examined at a public enquiry and are submittedfor approval to the Ministry of the Environment and Spatial Planning and other relevant ministries.The plans are required to apply the same coastal policies to the terrestrial zone of protection thatwere previously specified by Decree-Law 309/90. In addition, Decree-Law 309/93 defines criteria forclassifying bathing beaches and prescribes principles for managing them, which should beincorporated into the plans.

Portugal�s coastal development problems are deep-rooted and it is debatable how successful theapproach taken has been in tackling these issues. Problems caused by inappropriate developmentare still evident in many coastal areas. Lessons can nevertheless be learned from Portugal�sexperience. The approach has demonstrated that uniform national policies may be too prescriptiveand therefore inappropriate to variable local circumstances and difficulties can arise where differentplans have overlapping remits and different objectives.

New Zealand (box 4.4, Chapter 4) is exceptional in incorporating integrated management of itscoastal and territorial waters into a comprehensive reform of environmental law. The ResourceManagement Act (RMA) 1991 reflects the important principle that the coastal zone is part of awider environment, and legislation for the coast should not be considered in isolation, but mustbe compatible with other laws. The Act is considered to be among the best examples ofenvironmental legislation in being. However, comprehensive reform of a plethora ofuncoordinated laws into a single statute has not been without difficulties. Such a fundamentalchange inevitably requires considerable political will, and could not be introduced without thegeneral consent of participants. Even after passage of the new law, many departments found itdifficult to revise their methods of control. Experience in New Zealand has also shown thatcomplex new legislation is unlikely to be perfect in its initial form, and will usually requirefurther amendment.

Although the RMA has improved integration across the land/sea divide, replaced many statutesand regulations and resulted in the abolition of numerous statutory and quasi-governmentagencies, it still does not integrate all environmental and resource management interestsoffshore. There are still a significant number of ministries and statutory authorities with offshore

108 Plans, however, cannot include areas within the jurisdiction of a port.

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environmental responsibilities.109 Additionally, the RMA is excluded from the allocation offisheries rights, which is viewed as a weakness by some commentators.

Australia�s Ocean Policy was initiated in August 1996 and launched in December 1998. It hasbeen analysed in detail by MacGarvin (2000),110 who described it as providing ��the bestframework in the world, and is recommended without hesitation as one starting point for theEuropean context�.111 However, even at such an early stage there are questions over its futurefunding. There is also concern that the Policy prioritises exploitation over preservation of oceanresources. Arguably, the key focus of the Policy is upon the offshore marine environment, andintegration of land and marine-based activities is not emphasised in the Policy. Improving themanagement of Australia�s coastal areas has always been a hard issue for governments to tackle,as attested by the numerous inquiries conducted by both State and Commonwealth governmentsover the past two decades. Nevertheless, implementation of the Ocean Policy, and in particularthe preparation of Regional Marine Plans (RMPs), is the key initiative in many researchers�opinion that might significantly progress ICZM in Australia in the medium term (if supportedby political and administrative leadership). Unfortunately the Scoping Paper for the first RMP112

(released in late January 2001) deals only with Commonwealth jurisdictions and hence limitsthe opportunity to progress integrated management in the immediate future. Development of theplan is intended to take three years.

Canada�s Oceans Act (box 4.5, Chapter 4) provides an example of federal legislationestablishing a broad framework for integrated management coordinated by a nationalgovernment, although as with Australia�s Oceans Policy, it is still too early for a full evaluationof the effectiveness of the new institutional arrangements. Nevertheless, some progress isevident. Pilot Marine Protected Areas (MPAs) have already been designated, with moreproposed, and the first offshore ocean management area was defined in 1998. A �learn-by-doing� approach (often by using pilot projects, e.g. pilot MPAs) is being adopted and adaptivemanagement is supported by the high status afforded to research and the development ofscientific understanding. A key feature has been the emphasis upon consensus building,fostering increased transparency in the decision-making process. A number of initiatives at avariety of scales have been adopted, demonstrating successful commitment to stakeholdercooperation and collaboration, including a growing number of marine stewardship groups.However, with no national policy for ICZM, there has been only limited success so far indealing with development affecting the marine environment, whether land-based, crossing theland-sea divide or offshore. Nevertheless there are a number of initiatives which consider themarine effects of land-based activities.

In reviewing these lessons from international practice it is arguable that the best global practicedoes not yet exist. The approaches adopted by Australia, Canada and New Zealand are relativelyrecent and still have to be fully tested. It is premature to suggest that any of these models isperfectly applicable to the UK as differences in political culture, geographical scale andinstitutional complexity, among other factors, negate against the simple transfer of overseas

109 These include the Ministries of Environment and Research, Science and Technology, as well as the Maritime SafetyAuthority, and the Environmental Risk Management Authority.110 op cit., ref 20, pp.26-48.111 ibid., p.26.112 The South-east Regional Marine Plan, encompassing marine areas off Victoria, Tasmania, southern New SouthWales and eastern South Australia.

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practice. For example, reform in Australia, Canada and the US was largely driven by the need tointegrate state and federal policies. No such need yet exists in the UK, although marine resourcemanagement duties that are devolved to national administrations need to be clarified and mademore consistent. However, international experience demonstrates the importance of diversityand the need to adapt mechanisms to suit national circumstances and not be over-prescriptive. Itis clear that law has the capacity to make important contributions to integrated ocean and coastalmanagement, stimulating and facilitating the implementation of policy at national, regional andlocal levels.

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Table 3.1 Major lessons arising from international case studies (source: Cardiff University, 2001113)

General area Specific area Lesson learnt Country example

Institutionalarrangements

Legal andadministrativeframework

The importance of establishingarrangements to ensure that fullinter-sectoral, inter-agency andinter-level integration isachieved

Oregon State CMPand OMP; NewZealand

Institutionalarrangements

Legal andadministrativeframework

Complex framework canpresent an obstacle forintegration

Denmark; Portugal

Institutionalarrangements

Legal andadministrativeframework

Providing appropriateinstitutional frameworks doesnot guarantee successfulenvironmental management.

Sweden

Institutionalarrangements

Non-coastal specificintegrationframeworks

Integrated resourcemanagement and planning canbe effectively extendedoffshore

Tasmania;

Institutionalarrangements

Land-sea boundary The importance of ensuring thatsound integration exists acrossthe land-sea divide

Oregon State CMP,Canada, NewZealand

Institutionalarrangements

Land-sea boundary Jurisdictional distinctionbetween land and sea presentsobstacles for integration

Denmark

Institutionalarrangements

Land-sea boundary Combined spatial planning forland and sea areas is a relevantapproach

Portugal

Institutionalarrangements

Inclusion of allsectors

Parallel development offisheries and mariculturelegislation has resulted insignificant management issues

Exclusion of fisheriesmanagement is a weakness ofsystem

Tasmania

New Zealand

Institutionalarrangements

Extent of change Extensive overhaul of primarylegislation is possible and canstreamline resourcemanagement

New Zealand

Institutionalarrangements

Programme status The value of a statutoryapproach

Canada

113 op cit., ref 21, pp.54-57

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Institutionalarrangements

Programme status Voluntary approaches can besuccessful

Oregon State CMP

Institutionalarrangements

Programme status Advisory status of översiktsplanplans can be easily undermined

Sweden

Institutionalarrangements

Programme status Combinations of statutory andnon-statutory mechanisms cancomplement each other

Tasmania

Institutionalarrangements

Programme status Existing powers can beimaginatively used to cope withchanging pressures andmanagement demands

Shetland andOrkney, Scotland

Governance Co-management Importance of a mechanism forco-management of federal/stategovernment in oceanmanagement

Oregon State OMP

Governance Appropriateinvolvement of alllevels

Identifying an appropriatecentral-local balance ofresponsibility is important

Sweden

Governance Subsidiarity principle Encourages local participationand ownership

New Zealand

Governance Regional level Important in providing astrategic perspective for coastalplanning; need for clearlydefined roles for different levelsof government.

New Zealand

Governance National dominance Uniform national policies maybe too prescriptive and thereforeinappropriate to variable localcircumstances

Portugal

Governance Inter-level integration A clear planning/ managementcascade is essential

Sweden; Canada;New Zealand

Managementprinciples

Subsidiarity principle Encourages local participationand ownership

New Zealand

Managementprinciples

Consistency principle Central to ensuring integrationbetween plans and policydocuments; the need forinstitutional consistency

New Zealand;Canada

Managementprinciples

Consistency principle Difficulties can arise wheredifferent plans have overlappingremits and differing objectives

Portugal

Managementprinciples

Sustainabilityprinciple

The value of approaches basedon principles of sustainabilityand ecosystem management

Most case studies,e.g. Oregon StateOMP, NewZealand, Canada

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Geographical scope Landward scope Landward coastal planningrequired to protect undevelopedcoasts and excludedevelopments not requiring acoastal location

Denmark; Scotlandand others

Geographical scope Offshore scope Spatial planning can besuccessfully extended intoterritorial waters

Sweden

Geographical scope Offshore scope Integrated regional resourcemanagement requiresmanagement to be extendedoffshore

New Zealand

Geographical scope Offshore scope County councils can effectivelyplan and manage offshore areaswithin their jurisdiction

Shetland andOrkney, Scotland

Geographical scope Regional dimension Important in fostering a morestrategic approach to offshoremanagement

New Zealand

Geographical scope Ecosystem-basedapproach

Management based on a largemarine ecosystem

GBRMP, Australia,Canada

Stakeholderinvolvement

Participation The importance of adopting aninclusionary approach and ofresolving conflict

Canada

Stakeholderinvolvement

Networking The need for networkingorganisations is essential

Sweden

Stakeholderinvolvement

Participation Adequate time periods and earlyinvolvement are essential;extensive stakeholderparticipation is essential

Tasmania, OregonState OMP

Stakeholderinvolvement

Partnershipapproaches

Non-statutory programmesbased on partnership can beeffective local managementapproaches

Focus on Firths,Scotland

Stakeholderinvolvement

Collaborativeworking

Collaborative working withwide stakeholder involvement ismore successful than top-downmanagement approaches

EnvironmentWaikato, v.CanterburyRegional Council,New Zealand

Stakeholderinvolvement

Stewardship The value of stewardship Oregon State OMP;GBRMP, Australia

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Stakeholderinvolvement

Interpretationmaterial

Simple interpretation andinformation material can assistin public participation andprogramme enforcement

GBRMP, Australia

Managementtechniques

SEA Integrated assessment of top-level, state policies providesframework for State CoastalPolicy and programme

Tasmania RMPS

Managementtechniques

EIA EIA for offshore developmentsassists integrated management

Denmark

Managementtechniques

Planning Importance of a plan-ledapproach

Oregon State OMP;New Zealand

Managementtechniques

Zoning An important element of themanagement of large offshoreareas;

Need to be complemented by asuite of supportive managementmeasures;

Importance of buffer zonesaround conservation areas

GBRMP, Australia

Information andknowledge base

Knowledge andunderstanding

Knowledge and understandingare vital to the success of anoffshore managementprogramme

Sweden

Information andknowledge base

Information base Vital for offshore ecosystemmanagement

New Zealand

Information andknowledge base

Research and training Research and trainingprogrammes are an essentialelement of the State CoastalPolicy

Tasmania

Information andknowledge base

Communicationprogrammes

Extensive and wide publicparticipation includingcommunication programmes area vital to offshore management

GBRMP, Australia

Baseline surveys andmonitoring

The importance of base linesurveys and monitoringprogrammes from the outset ofany programme of management

Oregon State CMP

Process of changetowards integratedmanagement

Political will/support Political will is required toestablishment a successfuloffshore managementprogramme

Sweden; Canada

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Process of changetowards integratedmanagement

Political will andpublic awareness

Importance of coincidence ofpublic awareness and politicalwill

Oregon State OMP

Process of changetowards integratedmanagement

Phased developmentof managementinitiatives

Interim non-statutory schemeintroduced for marine fishfarming, prior to transfer ofregulatory functions

Scotland

Process of changetowards integratedmanagement

Competency Competency must be developedat appropriate scales

Sweden

Process of changetowards integratedmanagement

Organisationalcapacity

The importance of ensuring theorganisational capacity exists toimplement managementarrangements; experience withMPAs can assist withdevelopment of general offshoremanagement

Oregon State OMP;Canada

Process of changetowards integratedmanagement

Incentives The importance of providingincentives for management tobe undertaken

Oregon State CMP

Process of changetowards integratedmanagement

Hard graft Integration between scales andsectors does not just happen;teething problems are inevitablewith major institutionaloverhaul

Sweden; NewZealand

Process of changetowards integratedmanagement

Funding The importance of funding,especially in staff capacity andinformation areas

Oregon State OMP

Process of changetowards integratedmanagement

Evaluation andreview

These are essential to ensureeffective policy developmentand implementation; the valueof adaptive approaches

Tasmania; Canada

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4 Options for legislative reform

4.1 INTRODUCTION

This chapter provides a summary of the main options for legislative and managerial reform ofthe Welsh marine environment and the many and diverse uses and activities it supports. Threekey options for legislative and managerial change are outlined, ranging from the retention of thestatus quo through to comprehensive reform in the form of an integrated sea use planning andmanagement system. The chapter concludes with an analysis of the way forward, incorporatingsuggested administrative reform of administrative structures at both UK and Wales level andrecommendations proposed to advance reform of the legislative framework for the Welshcoastal and marine environment.

4.2 ELEMENTS OF REFORM

The key elements of reform are outlined in box 4.1, and any programme of reform should alsobe guided by the principles outlined below. Consideration should also be given to the keyprinciples put forward by the Recommendation of the European Parliament and of the Councilconcerning the implementation of Integrated Coastal Zone Management in Europe(2002/413/EC).

• Subsidiarity � this principle, which was introduced by the Maastricht Treaty, defines thatdecisions should be made as close as possible to the appropriate level of communityinterest, ensuring no unnecessary management effort is undertaken at the inappropriatelevel.

• Consistency � this principle, as applied in the United States Coastal Zone Managementprogramme and in the New Zealand Resource Management system, requires planning andpolicy documents not to be inconsistent with other statutory documents.

• Precautionary � this describes an approach to the protection of the environment basedaround precaution, even when there is no clear evidence of harm or risk of harm from anactivity or substance. Although implicitly incorporated into a number of Europeaninstruments (e.g. Environmental Assessment Directive 85/337/EEC) and thereforetransposed indirectly into domestic legislation, the application of the precautionary principleis far from consistent and open to interpretation.

There are several different ways in which national and devolved legislation, policy and planscould be used to facilitate a more strategic, sustainable and integrated approach to the planningand management of the marine environment. While most stakeholders would agree that someelement of reform is needed to rationalise and coordinate the complex plethora of legislationand often confusing consents processes, there is much to recommend the status quo (option 1)(section 4.2) from the point of view that it is well-established and arguably functions relativelywell within its current sectoral remit. It can be argued that the problem is related more to theinterpretation and application of regulations, as opposed to the legislation itself; a situation thatcan be remedied through non-statutory coordination of the implementation of existing laws(option 2) (section 4.3). Ultimately however, it is only a statutory approach, outlined in option 3

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(section 4.4), that can compel the subordination of one interest to another and enforce difficultdecisions. This option encompasses a wide range of possible approaches incorporatinglegislative reform, from the development of a statutory framework for coordinating existinglaws, through to comprehensive legislative reform, typified by Canada�s Oceans Act. Many ofthese options have been discussed previously in Cardiff University�s report to CCW on theAnalysis of Options for Improving the Planning and Management of the Wales Territorial Sea.That study involved extensive stakeholder discussion of the various options, which have beendeveloped for the purpose of this report. The options for reform are illustrated with internationalcase-studies, where appropriate.

Box 4.1 Key requirements of change

Integrated ManagementAs previously described, the system of marine and coastal governance is sectoral and insufficientlyintegrated. This was acknowledged in DEFRA�s Review of Marine Nature Conservation (interimreport) and in several other studies including the recent marine regulatory review reports to JNCC byHull University. Development of integrated marine policy would place a duty of care on all marineregulators, stakeholders and users to take responsibility for coastal and marine stewardship, andwork together to ensure the effective management of the marine environment. An integratedapproach to marine policy is not a new idea and several states have established new regimes for themanagement of their territorial seas. For example, Australia has an Oceans Policy and Canada hasan Oceans Act, whereas in other countries (e.g. Sweden), land-based systems have been extendedseawards. Despite local attempts in Wales (and England) to develop more integrated approaches tocoastal management, notably through the establishment of non-statutory local coastal fora, theseinitiatives have not been coordinated within a statutory framework, and the overall picture remainssectoral. Fresh impetus to take forward integrated coastal management may be provided by the ECRecommendation on Integrated Coastal Zone Management (ICZM) (2002/413/EC). Some (at least)of the principles contained in the Recommendation could be applied through legislation formanagement of not only UK coasts, but also its seas.

Stakeholder InvolvementA theme common to all successful marine environmental management initiatives is the involvementof stakeholders so that they are an integral part of the decision-making process. Arguably,stakeholder involvement has been strongest at the local level in Wales, and in particular the bottom-up estuary and coastal multi-stakeholder partnerships have provided a new dimension to integratedcoastal management through their inclusivity, community involvement and participatory planningmechanisms. Estuary management initiatives in particular have demonstrated good practice infacilitating joined-up thinking and collaborative working, but they are funded by stakeholders throughad hoc voluntary arrangements. The Pembrokeshire Coastal Forum and Severn Estuary Partnershipare successful examples of this approach. The latter collaborates with many diverse stakeholders,including 13 local authorities from both England and Wales. Also, in stating that there can be onlyone scheme of management for a European site (e.g. a Special Protection Area or Special Area ofConservation), the Habitats Directive provides a context for collaboration by relevant authorities.While it may therefore be argued that there is already significant levels of stakeholder participation atthe local level, as evident from the numerous coastal group and fora around the Welsh coast, it hasnot been effectively coordinated at a national level. The recently established Wales Coastal andMaritime Partnership, should allow all stakeholders to exchange information and help inform policydevelopment in Wales on the sustainable development and management of the Welsh coastal andmarine environment.

Cont�d�

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Box 4.1 continued

Strategic Spatial PlanningA spatial plan is a means of considering how to plan the future location of human activities tocontribute best to meeting environmental, social and economic needs. Spatial planning provides thebasis for most of the planning activities, development and resource use on land. However, in themarine environment there is no clearly articulated spatial vision, no plan-led approach and,consequently, a lack of certainty for marine developers and users. The lack of a coordinated planningframework and unified consenting regime for activities below low water mark was highlighted as aconcern in the Interim Report of the Review of Marine Nature Conservation (2001), and acommitment was given in the recent DEFRA Marine Stewardship Report (2002) that the UKgovernment will explore the role of spatial planning in the marine environment. A strategic marineplanning system would ensure a coordinated plan-led approach to help avoid or reduce conflict, toidentify and permit appropriate and compatible developments and to protect and enhance importantenvironmental and social assets from inappropriate development. It would enable a strategicoverview of developments in the coastal and marine environment, and utilising tools such asStrategic Environmental Assessment (SEA), would help assess the cumulative and in-combination effects of projects and policies. The Assembly is currently involved in the preparation ofa new national spatial planning framework for Wales (the emerging Wales Spatial Plan � WSP),although it is not clear at this juncture how much consideration, if any, the WSP will give todevelopment impacts below low water mark (see box 4.2). A marine spatial plan, however needs tobe different from a land-use plan, in that it must be multi-use planning to deal with multiple uses ofthe sea such as fishing and discharges as well as development. It also has to be implemented in amulti-dimentional, dynamic and changeable environment, and will also have to deal with highlymobile species (e.g. fish, cetaceans and plankton) and adverse trans-boundary impacts (e.g. oilspills and algal blooms).

To be effective marine spatial planning needs to take an ecosystem approach. In a dynamicenvironment, where many of the users are transient in time and space, many of the issues to beaddressed and influencing factors (e.g. pollution and physical processes) do not respect political oradministrative boundaries. The plan would need to include bio-geophysical data and geographicinformation on existing activities/uses for suitably defined management units. The Joint Wildlife,Countryside and Environment Links believe in adopting a regional marine planning approach, asis being tested for the RMNC Irish Sea Pilot Study, with sub-regional plans as appropriate tosensitive and busy areas such as estuaries. Some regional plans would cross national boundaries.For example, a regional Irish Sea Spatial Plan would involve Wales, England, Scotland, NorthernIreland and the Republic of Ireland, which underlines the need for a UK lead in marine spatialplanning.

The ecosystem approach is a strategy for the integrated management of land, water and livingresources that promotes conservation and sustainable use in an equitable way. It is based on theapplication of appropriate scientific methodologies focused on levels of biological organisation whichencompass the essential processes, functions and interactions among organisms and theirenvironment. Application of the ecosystem will bring management of the UK�s marine environment inline with current international commitments, for example under OSPAR and the InternationalConvention on Biological Diversity.

114

114 The ecosystem approach is the primary framework for action under the Convention on Biological Diversity. TheConference of the Parties, at its Fifth Meeting, endorsed the description of the ecosystem approach and operationalguidance and recommended the application of the 12 principles and other guidance on the ecosystem approach.

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The administrative changes in government structures associated with legislative reform areaddressed in section 4.5. The degree of administrative and legislative change for Wales will behighly dependent on the political will and perceived need for change from stakeholders,especially central government. As a minimum it is suggested that reform should deliver non-statutory strategic policy and guidance with supportive legislative measures at a later date.

4.3 RETENTION OF THE STATUS QUO � OPTION 1

The principal elements of the current legislative framework have been outlined in this briefingand are described in detail in the main report. In summary, the key strength of the status quo isthat the sectoral approach is well-established and understood and has evolved within the UKinstitutional culture and complex legislative framework to suit specific needs. In addition, therehave been recent improvements to inter-organisational liaison and cooperation without majorinstitutional upheaval, including requirements for public bodies to take account of natureconservation when exercising their functions.

The weaknesses of the sectoral legislative framework are well-documented. They include, interalia, a complex statutory structure with overlap and omissions, multiplicity of agencies withoverlapping/inconsistent jurisdictions, existing laws that place limitations on the ability ofstatutory bodies to work together, and lack of integration between individual sectors and acrossthe land/sea interface. However, as noted in Cardiff University�s Analysis of Options forImproving the Planning and Management of the Wales Territorial Sea, considerable inertia cannegate against any modification of the status quo, particularly if the impetus for change is lowon the political and public agenda.

Box 4.2 Strategic planning boundaries

As described in box 4.1, strategic spatial planning needs to be on a large scale, and there may bemerit in adopting a regional approach. This raises the issue of defining appropriate planningboundaries, including the onshore and offshore jurisdiction of any spatial plan. These would need tobe determined through extensive stakeholder consultation. Arbitrary boundaries, such as a six-milelimit or the 12-mile limit of the WTS, are not consistent with the ecosystem approach. Similarproblems arise in defining a landward boundary, as processes and activity far inland can have aneffect upon the marine environment. In order to maintain consistency, consideration would also needto be given to how the onshore boundary of the plan would be coordinated with the evolvingterrestrial spatial planning system for Wales. Indeed there may be fewer factors to consider andissues to contend with in defining a meaningful offshore boundary. The US Coastal ZoneManagement Act 1972 defines the coastal zone flexibly in terms of the interdependence of land andsea. It extends seaward to the outer limit of the territorial sea, and inland to the extent necessary tocontrol the uses of shorelands which have a direct and significant impact on coastal waters.

Cont�d�

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Box 4.2 continued

For some seascapes, such as estuaries, highly developed coastal areas, and intensively-usedshipping lanes, a more detailed, technical approach to planning may be required (involving moreformal management structures) consistent with the objectives of the overarching spatial plan. Asdiscussed in box 4.1, the Joint Links advocate the development of sub-regional plans, although thereare other options that require full consideration and consultation. At present, coastal and estuarymanagement programmes (e.g. Pembrokeshire Coastal Forum and the Severn Estuary Partnership)and coastal groups (involved in shoreline management planning, e.g. Carmarthen & Swansea BayGroup) attempt to provide a strategic perspective using a sub-regional approach, but within a non-statutory framework. It is questionable whether such approaches could be transposed offshore.Indeed, the major strength of estuary management initiatives is the level of local stakeholderparticipation based on awareness of the issues involved. This level of awareness and understandingis likely to decrease with increasing distance offshore. Other strengths and weaknesses ofdeveloping the role of local advisory fora have been analysed in Cardiff University�s study on theplanning and management of the WTS. This concluded that although estuary-type strategies are avaluable complement to the statutory system, they are unlikely to perform more than a limited role inthe management of the offshore marine environment.

Another option would be the offshore extension of the current statutory planning system, although itis questionable whether local authorities would welcome additional responsibilities out to sea if theyare not adequately resourced or have the expertise. This approach is one of the most frequently andsuccessfully adopted management strategies for coastal areas found in the legislature of othercountries (e.g. Sweden, New Zealand). It includes both strategic (UK government/NAW: legislation,guidance, overview and control of appeal processes) and local (local planning authorities:development plans, development control, etc.) decision-making, and could also incorporate aregional dimension. There is already expertise and practice at the regional level in coastal planningand management, particularly within shoreline management.

There are two ways in which seaward extension of planning powers could be achieved. The firstwould involve an amendment to the Town and Country Planning Act 1990 by the UK Parliament toextend its geographical remit. The alternative would be through the revision of the seawardboundaries of local government areas by order of the NAW. This, however, would not be restricted toplanning functions and would result in a general extension of local authority jurisdiction, which isconsidered as a separate option below. The possibility of nearshore development, notably in relationto marine renewables, may provide the impetus for further consideration of the extension of thecurrent statutory planning system.

However, it should be noted that the government considers that most forms of developments belowlow water mark are already controlled through effective statutory systems, and that a high proportionof marine development proposals in Wales might still have to be called in for a central decision. Thisoption also raises boundary issues relating to demarcation problems (e.g. for cross-boundarydevelopments and SACs), particularly if different arrangements are adopted in Wales and England.The seaward boundary of the planning system would also need to be established, taking account ofthe limited expertise of LPAs in sea use planning, and the resources available. Nevertheless, thisoption extends a well-recognised and valued system, and would provide a more strategic andaccountable approach to decision-making below low-water.

Cont�d�

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Box 4.2 continued

Although the Local Government Act 1972 restricts the use of bylaws to areas within a council�sadministrative boundary (and therefore not generally beyond LWM), local authorities (LAs) inEngland and Wales do have powers under several other Acts of Parliament enabling them to enactbylaws offshore. For example, the Public Health Act 1961 authorises bylaws to control pleasureboats up to 1,000 metres seaward from LWM. However, these powers can generally only be used forpublic order or safety reasons, which limit their usefulness for wider sea use management. Incontrast, Scottish LAs have a more effective bylaw-making power that enables them to cover a widerrange of activities, including the protection of the natural beauty of the seashore.

Although the government�s Review of Bylaw Powers for the Coast (1998) identified the need for amore flexible and comprehensive statutory provision in England, no legislative action has yet beentaken to implement its provision. In any case, such reform in Wales would require legislative changesbeyond the competency of the NAW. In the absence of an enabling Act, LAs could pursue privateBills in the UK Parliament in order to confer additional functions upon themselves. This, however,would be a lengthy and expensive process. Alternatively, LAs could make greater use of bylaw-making powers they already possess � for example through representation on Sea FisheriesCommittees (SFCs), which are empowered to make fishery bylaws out to the six-mile limit. TheEnvironment Act 1995 conferred additional powers upon SFCs, enabling them to make bylaws formarine environmental purposes, in addition to their traditional objectives. Similarly, some LAs arealso harbour authorities, and can make bylaws under their local harbour legislation (within harbourlimits). The Transport and Works Act 1992 amended the Harbours Act 1964 to give harbourauthorities a discretionary power to acquire the right to make bylaws regulating harbours for natureconservation purposes. However, bylaws are subject to practical and legal limitations and therewould be difficulties associated with their enforcement offshore. Since they must conform strictly tothe terms of the legislation under which they are made, they require confirmation by nationalgovernment, and they may be quashed by the courts if they are held to be unreasonable.

4.4 NON-STATUTORY COORDINATION OF THE IMPLEMENTATION OF

EXISTING LAWS (EXPANSION OF POLICY FRAMEWORK) � OPTION 2

This option is essentially an extension of the status quo, and is exemplified by the currentapproach to integrated coastal management in the UK. There is already a plethora of sectorallaws that govern the terrestrial and marine environment and which operate independently ofeach other. It has long been the belief of the UK government that attempts to coordinate theactivities of the many organisations operating within these sectors should be pursued withoutfurther legislation and is best achieved on a voluntary basis. Consequently, arrangements forimproved coordination and cooperation could be enshrined within plans that do not themselvestake the form of legislation, but utilise existing mechanisms set out in a series of guidancedocuments (box 4.3).

There are several advantages to this approach, including familiarity with the status quo andextensive experience in drafting policy guidelines. Significantly, no legislative reform would berequired and non-legal arrangements could be introduced more quickly than further regulations.This approach would also allow some measure of flexibility, as policy documents could berevised without the need for amending legislation. Furthermore, voluntary participation wouldbe more likely to attract support and cooperation than legal compulsion.

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The limitations of the existing sectoral legislative framework may constrain the effectiveness ofthis option. For example, statutory bodies may be unable to undertake matters not expressly orimplicitly authorised by the legislation under which they operate. Relying on policy alone isunlikely to result in the desired change across the range of regulatory authorities withresponsibility for marine management. Although policies may propose changes in managementpractices, there is no guarantee that all authorities will follow voluntary guidelines, even if it islegally possible for them to do so. Without a regulatory or political imperative supporting thepolicy initiatives, the desired action may not be forthcoming.

Box 4.3 Australian Commonwealth Coastal Policy

The aim of the Commonwealth Coastal Policy (CCP) is to promote ecologically sustainable use ofAustralia�s coastal zone. It articulates the Commonwealth�s vision for a cooperative, integratedapproach to coastal management and provides both the means for the Commonwealth to manage itsown activities, and a range of initiatives whereby all stakeholders can work together to ensure bestmanagement of the coast.

Launched in 1995, the CCP was the federal government�s response to the Final Report of theResource Assessment Commission�s (RAC) detailed and comprehensive Coastal Zone Inquiry. Thetwo major problems identified as inhibiting sustainable use of the coastal zone were:• fragmented management arrangements based on single issues or sectors; and• the �tyranny of small decisions�, whereby over time a number of decisions that in themselves are

not significant, accumulate and interact to result in a significant impact on the coastal zone.The CCP is essentially advisory and contains a number of policy initiatives to assist integrateddecision-making and the development of long-term strategic responses to the coastal problems.Central to these initiatives is a programme to develop integrated coastal area managementstrategies, based on partnerships between the three spheres of government, the community andindustry. The strategies provide a means of resolving resource and environmental conflicts andprovide a base for coordinating the activities of all agencies with responsibilities in the area. Otherinitiatives focus on:• increasing community, including indigenous people�s, involvement in coastal management

through a Coastcare programme;• addressing the most pressing coastal problems, such as coastal development and pollution, for

example through the development of local water quality management plans;• enhancing awareness, promoting education, and improving the knowledge, experience and

information available to coastal managers, planners and users;• conserving and managing areas and features of significant ecological, physical, cultural, historic,

landscape and scientific importance, and maintaining the biological diversity and productivity ofmarine and terrestrial ecosystems; and

• promoting Australian coastal management expertise in neighbouring regions.Effective communication was perceived as essential to improved coastal management and this wasachieved through establishment of:• the Commonwealth Coastal Coordinating Committee � to ensure integration of Commonwealth

activities affecting the coast; and• an Inter-Governmental Coastal Technical Group � to provide technical input into the

implementation of the Coastal Action Plan.Cont�d�

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Box 4.3 continued

The CCP has been criticised as being one-dimensional, and an attempt by the Commonwealth to tiein the states and territories through MOUs to ICZM as the basis for various funding arrangementsunder the Coasts and Clean Seas Programme (including Coastcare). In practice, however, to allintents and purposes, the planning and management of the Australian coastal zone is carried out bystate and territory governments, with important activities undertaken by local governments.

115 It

should also be noted that the non-binding CCP has not been updated for several years and is notspecifically integrated into the Australian Oceans Policy.

For further information see: http://ea.gov.au/coasts/publications/coastal-policy/

4.5 MARINE LEGISLATIVE REFORM � OPTION 3

It should be noted at the outset that scope for independent legislative reform in Wales isseverely limited. As previously noted, only the UK Parliament is capable of enacting primarylegislation relating to Wales (including the WTS and offshore marine environment). The powersof the NAW are limited to making secondary legislation in certain devolved fields, withpotentially significant restrictions. Neither is the NAW empowered to change the provisions ofUK Acts. Consequently the NAW lacks sufficient freedom to legislate in key areas. Any scopefor independent action would require the transfer of primary legislative powers to the NAW (aconsideration beyond scope of this study), or a constitutional change in the application of UKlegislation to Wales. Again, however, the power to do so resides with the UK Parliament.

In principle, legislative reform could be accomplished in two main ways � at the frameworklevel, involving the coordination of existing legislation; or on a comprehensive level, whichwould involve wholesale reform of the coastal and marine planning and management system.The first approach involves the enactment of a framework statute, within which existing lawscan be coordinated to facilitate both the operational and planning aspects of management. Theframework statute should specify how existing legislation should be used to achieve integratedmanagement of the marine environment. For example, it could impose a duty of care upon allbodies to act so as to further integration and support sustainable management. Alternatively, itcould create a general requirement for specified bodies to consult other affected parties beforemaking decisions that impact upon the marine environment, involving the incrementalmodification of existing sectoral legislation to remove impediments to coordination andcooperation, thereby enabling them to be used to achieve integration. The closest equivalent tothis is the provision on public bodies �to have regard to wildlife and the environment� in variouspieces of legislation. Such framework legislation would probably require detailed policyguidance to be developed to define, inter alia, the principles and broad objectives of integration,the minimum standards and levels of compliance with the new statutory regime, andconsultation arrangements and coordination of actions including, where appropriate, jointdecision-making and allocation of responsibilities.

115 Wescott, G. (2001) Integrated coastal zone management in the Australian States. In: Haward, M (ed.) Integratedoceans management: issues in implementing Australia�s Oceans Policy. Cooperative Research Centre for Antarcticaand the Southern Ocean. Research report No.26, Hobart, Australia.

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New Zealand (box 4.4) provides a good example of this approach. Following four years oflegislative review and consultation, the Resource Management Act 1991 created a singlelegislative framework to replace more than 20 major statutes which often served contradictorypurposes, and overlapped or conflicted with each other. The main strength of this approach isthat it could rationalise and amend the existing sectoral legislation that has developed piecemealover the years in relation to sectoral needs, thereby clarifying the existing division ofresponsibilities (both sectoral and jurisdictional) between organisations in the marineenvironment. It would also provide a statutory requirement for the coordination of various non-statutory initiatives, and mitigate against any duplication of effort. Furthermore, of the twoapproaches to legislative reform outlined here, it would create the least disruption to existinglaws and procedures and maintain maximum consistency with existing procedures on land. Itshould also be cheaper to operate than adding new powers.

The main limitations of the approach include the difficulty associated with the coordination of alarge number of sectoral authorities; the complexity of the existing regulatory system and itsresistance to change; potential weaknesses or omissions in the existing legislation would need tobe patched up; and the length of time required to review, consult and agree upon any legislativechanges. There would also be significant resource issues associated with establishing newlegislation and the necessary consultations. Difficulties are likely if different decision-makingstructures are established for Wales, while the wider UK and international regime remainsunchanged.

Box 4.4 New Zealand�s Resource Management Act

In the past in New Zealand, natural and physical resources were governed by more than 50 lawswhich were often conflicting, overlapping or inconsistent in their purpose. In 1991, however, NewZealand revamped its legislative base into a single environmental law. The Resource ManagementAct (RMA) 1991 replaced more than 20 major statutes, including the Town and Country Planning Act1997, water and soil legislation, and the laws covering geothermal resources, air and noise pollution,and coasts.

The purpose of the Act is to promote the sustainable management of natural and physical resources.The environment is looked at as a whole when authorities are planning and making decisions.Instead of prescribing what activities should or should not be allowed, the Act places the emphasison the effect a proposed activity will or might have on the environment. The Act gives particularprominence to coastal planning. In particular it provides:• a comprehensive legal and administrative system addressing resource management, land use

planing and environmental protection;• legislation based on the principles of sustainable resource management, protection of the

environment and maintenance of vital ecosystem processes;• a framework of national, regional and district policies and plans, which includes territorial waters;• an �effects-based� rather than an �activities-based� emphasis to coastal planning and

management; and• an integrated system, involving clearly defined responsibilities for local and regional government,

based on major catchment boundaries and standardised regional planning and policyprocesses.

Cont�d�

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Box 4.4 continued

While the Ministry for the Environment administers the RMA, the Minister and Department ofConservation have direct responsibility for aspects of coastal/territorial sea management. Thisincluded the formulation of the New Zealand Coastal Policy Statement (NZCPS) in 1994, whichidentifies general principles for sustainable development as well as policies and guidance for coastalmanagement. The RMA defines a decision-making and planning structure based on the principles ofsubsidiarity and consistency (section 4.5), with the responsibility for identifying issues, developingappropriate policy responses, and implementing and monitoring those responses delegated to localauthorities.

116

Under the RMA, the regional councils produce both regional policy statements and regionalcoastal plans. The former address strategic policy for both land and offshore areas (to the limit ofthe territorial sea) and in so doing provide a framework for the development of regional coastal anddistrict plans. The policy statements provide an overview of the natural and physical resourcemanagement issues and priorities, and describe the policies and methods that will be used tomanage these resources. Consequently, they are useful tools for facilitating integrated territorial seamanagement at the regional level. Regional plans deal with specific resource management issues. AResource Regional Coastal Plan is compulsory for the Coastal Marine Area,

117 and may be

included as part of the regional plan. There is no obligation on regional councils to prepare regulatoryplans for landward areas.

The Act also provides for community input into policy formulation. This occurs through traditionalcomment and review procedures with extensive informal stakeholder involvement generally occurringfrom the early stages of plan preparation. There is also a requirement for local authorities toundertake wide consultation in plan and policy development. Furthermore, the RMA also states thatregional councils should ensure their documents are consistent with those of adjoining authoritiesand it allows joint approaches to be pursued where there are no cross-boundary issues.

Resource consents replace the many different permissions granted under previous laws.118

Thereare five types of resource consent comprising land-use, subdivision, water, discharge, and coastalpermits. The applicant is required to determine what impacts the proposal is likely to have on theenvironment and submit this to the consent authority. There may also be a requirement to explainwhat consultation has taken place with any persons affected by the proposal. Some of theseresource consent applications require public notification, which enables public scrutiny of proposals.

The alternative approach proposes wider legislative reform than outlined above and introducesan integrated sea use planning and management system under a comprehensive Marine Act(box 4.5). The new Act would provide the legislative drive and overriding imperative andauthority needed to deliver wide-ranging integration of sectoral interests. As this would requiresubstantial new primary legislation, involving coordination of both land and sea use planningregimes, it would need to be promulgated at national (UK) level, and coordinated across thedevolved administrations, with a strong Welsh component. The precise nature of involvementby the devolved administrations would require further consideration.

116 12 regional councils, 72 territorial authorities, and four unitary authorities (with the combined functions of regional andterritorial authorities).117 The Coastal Marine Area extends offshore from Mean High Water Springs (MHWS) to the 12 nautical mile territorialsea limit.118 These included permits, licences, rights consents, approvals, Orders in Council, or authority.

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Box 4.5 Canada�s Oceans Act

The Oceans Act, which came into force on 31 January 1997, establishes the legal and policy basisfor planning and decision-making in oceans and coastal waters and commits Canada to promotingthe understanding of oceans, ocean processes, marine ecosystems and marine resources. It alsocommits Canada to fostering the sustainable development of oceans and their resources whileasserting that conservation, based on an ecosystem approach, is fundamentally important tomaintaining biological diversity and productivity in the marine environment. To reinforce thisapproach, the Act calls for the wide application of the precautionary approach to the conservation,management and exploitation of marine resources, while recognising the significant opportunitiesoffered by the oceans and their resources for economic diversification and generation of wealth.

The Act provides the framework for the preparation of an overarching, national ocean managementstrategy and for subordinate integrated management plans which address all activities and measuresin and affecting estuarine, coastal or marine waters.

119 The Act also specifies that for the purpose of

implementing these integrated management plans, the Minister of Fisheries and Oceans Canada(MFOC):shall develop and implement the specific policies and programmes for which she/he hasresponsibility;shall coordinate the oceans-related policies and programmes of other Ministers, boards andagencies of the Government of Canada;may establish management or advisory bodies (or recognise existing bodies);may establish marine environmental quality guidelines, objectives and criteria and standards; andwill lead and coordinate the development and implementation of a national system of MarineProtected Areas.

The Oceans Act recognises that integrated management can increase the effectiveness of marineconservation and protection initiatives such as MPAs. It also recognises the need for integratedmanagement as a means to apply marine ecosystem health controls such as application of marineenvironmental quality standards. The MFOC is supported by Fisheries and Oceans Canada,

120

which has significant responsibilities and expertise that contributes to the integrated managementprocess. The department must consult, cooperate and collaborate with other authorities andstakeholders who are affected by integrated management plans. In addition to its role as �oceanstrustee�, Fisheries and Oceans Canada continues to be responsible for the wise management offishery resources and habitats, marine safety and environmental protection, and the provision ofscientific understanding and advice.

This option has wide-ranging implications and would clearly involve more substantial changesto the existing system than any of the other options presented. A number of institutional reformswould be required at many levels, from central government, the Assembly, agencies and localgovernment. To be effective, it is likely that a new executive marine authority (section 4.5)would need to be set up to develop, implement and oversee the reform. While there arenumerous and significant obstacles, and other unforeseen factors and risks, that could sidelineany attempts at major comprehensive reform, the potential advantages of this approach areclear. In addition to the advantages previously described in this section, it would create a singleintegrated procedure for decision-making, rather than attempting to coordinate a range of

119 Including activities elsewhere within Canadian jurisdiction which affect these areas. It therefore includes landwardactivities and allows for the development of Integrated Coastal Management, which transgresses the land/sea divide.120 Fisheries and Oceans Canada undertakes most of its activities at the regional level.

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sectoral decisions. As it would be specifically designed for the purpose of promoting integratedmanagement and sustainable development of the marine environment, it would not bedependent upon existing legislation or susceptible to the weaknesses of the current legislativeframework.

The key challenge to this approach is that it would require major legislative and possiblyadministrative changes, and therefore could be more costly to introduce and politically difficultto agree in the short term. However, it could provide the opportunity for long-term gains,including avoiding the cost of piecemeal and unsatisfactory changes to existing legislation overtime.

The need to re-route powers over sectoral authorities and stakeholders to a single executivemarine authority that may not necessarily produce a balanced judgement, is not conducive to aparticipative democracy, and wide consultation would therefore be essential. However, publicawareness and engagement generally decreases with distance offshore, along with the amount ofinformation available to support spatial marine planning and management.

It need not be essential to take powers away from Government departments. In fact, indicationsare that even with the current �Review of Consents� process, DTI will hold on to its powers todeal with planning applications for oil and gas at least and possibly offshore renewables. Asmall new Marine Authority in Government could be charged with facilitating integratedplanning and management of UK seas. By having the power to bring government departmentsand others together for management of UK seas, a new inter-departmental body, acting as an�honest broker� could facilitate integrated management and implement an ecosystem approachwithout major changes to powers or departments.

Determining the legislative boundaries of a Marine Act would present challenges. Issues to beresolved include its relationship and interaction with land use planning, precise status of InternalWaters and the Territorial Sea, and the area seaward of the Territorial Sea. An Act would haveto provide an integrated legal basis for marine spatial planning and related management linkingthese geographical realms. In doing so, care should be taken not to create a new jurisdictionalbarrier between the �marine zone� and inland areas, since many marine environmental problemshave their origins inland. Links will need to be established between management of land-sourced problems and their impacts on the marine environment, e.g. by linking marine spatialplanning and the Water Framework Directive, and by making the best use of ICZM to provide aseamless link between management of territorial waters and coastal land.

WWF has instructed Counsel to draft a UK Marine Act (section 1.1). The aim of the Act will beto provide an over-arching piece of framework legislation to provide stakeholders with acoherent regulatory framework for the management of the marine environment. It is hoped thatsuch a document will stimulate discussion within and between government departments andengage key regulatory authorities, industry, NGOs and other stakeholders in debate. WWFhopes this debate will encourage government to bring forward proposals for new primarylegislation in due course to ensure overall coherence of the marine regulatory system. The keycharacteristics of the framework document are summarised in box 4.6.

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Box 4.6 WWF�s proposal for a framework document for a Marine Act

• It will aim to provide a statutory purpose against which all decisions on marine issues may bedefined and establish a duty of care on relevant bodies with any remit in the marine environmentto take responsibility for coastal and marine stewardship;

• sustainable development should form the basis of all decisions concerning marine issues;• it should include an overarching vision for the protection of our marine areas, so that each sector

when considering its obligations towards environmental protection has a set of objectives andenvironmental values against which decisions can be taken;

• it would have as its basis an ecosystem approach, that sustains and restores natural systemsand their functions and values, is goal driven and based on a collaboratively developed vision ofdesired future conditions that integrates ecological, economic and social factors;

• it will require the integration of management of all activities affecting marine areas, and establishthe principles and requirements for spatial sea use planning and management; and

• it will establish the principles and requirements for Strategic Environmental Assessment andrequire the implementation of Marine Protected Areas and/or zoning of areas.

• Stakeholder dialogue and wide public consultation will both underpin any new legislation andremain a continuing commitment.

4.6 ADMINISTRATIVE REFORM OF GOVERNANCE STRUCTURES

4.6.1 At the UK Level

Arising from a legislative approach is the need for a defined ministerial and departmental leadand for any advisory and supporting bodies to take forward the implementation of an integratedmanagement strategy for the Welsh marine environment. The extent of administrative changerequired would clearly depend upon the measure of legislative reform being pursued � i.e. at theframework or comprehensive level. To be truly effective, an over-arching Marine Act, whichwould require extensive reform of primary legislation by central government, would arguablybenefit from the formation of a Marine Department, which would have considerable valuebeyond the achievement of legislative reform. However, the extent to which the functions ofsuch a department would be reserved or transferred to the devolved administrations is a subjectfor further debate and consultation.

The Need for Transparency

There is a fundamental need, however, to ensure that there is adequate representation of Welshinterests in any such debate. An effective relationship between Westminster and the Assembly(and Scottish and the Northern Ireland Executives) is essential for a coordinated approachacross devolved administrations. Consultation between Whitehall departments and the NAWhas developed almost exclusively with the National Assembly Cabinet rather than the 60-member Assembly. A Memorandum of Understanding121 between the UK government, Scottishministers, the Cabinet of the Assembly and the Northern Ireland Executive Committee commitsall four administrations to the principle of good communication with each other, especiallywhere one administration�s work may have some bearing upon the responsibilities of another.This applies to legislative proposals as much as other proposals for action. Guidance forWhitehall departments on consulting with the Assembly Cabinet is set out in DevolutionGuidance Note 9 (DGN 9) (Post-Devolution Primary Legislation Affecting Wales), whichprovides that the Assembly Cabinet should be consulted on Bills which:

121 Cm.4806, July 2000.

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• confer new functions on the Assembly;• alter the Assembly�s existing functions; or• otherwise affect areas which are the responsibility of the Assembly, including where it will

be responsible for implementation in Wales, though policy control remains with the UKgovernment.

While the consultation procedures set out in the Memorandum of Understanding and theDevolution Guidance Notes appear to have established the basis for good communicationbetween Westminster (in particular the Wales Office) and the Assembly Cabinet, greater levelsof consultation and transparency would be beneficial. In particular, consultation arrangementsbetween Westminster and wider Assembly Members through the Subject Committee122

structure, is not as well developed as that with the Assembly Cabinet, although members canexert some influence over UK government policy through pre-legislative scrutiny of Bills.However, several respondents, including CCW, noted that the Assembly needs to increase itscapacity for effective scrutiny of primary legislation. The Countryside and Rights of Way Act2000 was drafted early in the first term of the NAW when, for various reasons, it was unable todevote sufficient time to the draft Bill. Consequently, the Assembly relied heavily upon CCW toscrutinise and propose amendments to the Bill. The concern among many stakeholders,therefore, is that the present practice of scrutiny of primary legislation by the relevant SubjectCommittee (in this case the Environment, Planning and Countryside Committee123), may notprovide sufficient resource for this task.

The government has already indicated its intention to publish more Bills in draft, and this isparticularly welcome in respect of Bills which have a significant impact upon Wales. The SelectCommittee on Welsh Affairs124 has further recommended that Welsh Parts of draft Bills shouldbe published in advance of the full draft Bill so that Assembly and relevant committees havesufficient time for pre-legislative scrutiny. The committee also has a role in pre-legislativescrutiny. The Assembly Review of Procedure suggests that Assembly subject committees mightliaise with the Welsh Affairs Committee when issues of new primary legislation arise inconnection with a policy review that a subject committee is conducting, although there arecurrently no procedures in place for joint formal meetings to occur. The Institute of WelshAffairs (IWA) has advocated that joint sessions could lay the foundations for improvedcooperation in many parts of the law-making process, and this would clearly contribute toimproved transparency and a more joined-up approach to legislation affecting Wales.

122 The main function of Subject Committees, as set out in Standing Orders, are: policy development; scrutiny ofministers and Assembly-sponsored bodies; and scrutiny of legislation. They also advise on budget allocations.123 The committee has a very broad remit based on the portfolio of the Minister for Environment, Planning andCountryside. The minister�s portfolio embraces the environment and sustainable development, town and countryplanning, countryside and conservation issues, and agriculture and rural development including forestry and foodproduction.124 The Welsh Affairs Committee is one of the departmentally-related Select Committees of the House of Commonsappointed under Standing Order No.152, tasked with examining matters within the responsibility of the Secretary ofState for Wales, including relations with the NAW. Select Committees operate normally by conducting inquiries intosubjects within its area of responsibility. The principal powers of a Select Committee are to send for persons, papersand records, to adjourn from place to place, and to appoint specialist advisers.

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4.6.2 At the Devolved (Wales) Level

At the devolved level the roles of NAW departments reflect ministerial portfolios and legislativerequirements, but responsibilities relating to marine issues are shared across the Assembly andits agencies without a unifying framework. It would be easy to advocate integration by thecentralisation of power, but there is no obvious lead department, or agency or ministerialportfolio (see footnote 3) to oversee and coordinate the reform process. Furthermore, there islittle point in requiring officials to be answerable to a single minister if his department isnecessarily divided within itself. It remains to be seen whether the newly created post of NAWMarine Policy Officer125 will address these deficiencies, although located within the NatureConservation Branch of the Countryside Division, the position�s focus appears predominantlyfocused on conservation matters and the fulfilment of European marine nature conservationobligations.

Nevertheless, any programme of reform would need to be the responsibility of a single bodythat would coordinate input from all other interested and affected parties, including the differentlevels of government. A dedicated Ministerial forum (e.g. Marine and Coastal AffairsCommittee) consisting of a formal arrangement of ministers and/or their representatives withmarine and coastal responsibilities within their portfolios, could be an appropriate arrangement.The committee would benefit from a small secretariat to administer its work and a Chair in anappropriate division of NAW. The decisions of the committee could be informed by input froman expert advisory body such as the Wales Coastal and Maritime Partnership, or a similaradvisory forum. The committee would, inter alia, prepare and promulgate strategic guidance onthe integration of decision-making for delivering sustainability of the marine environment andact as an inter-divisional and inter-agency advisory mechanism, providing Welsh input at UKand European level. However, in this respect it should be noted that there are many ministerialfunctions, particularly beyond the WTS, that have not been devolved to the NAW and,significantly, there is no UK coordinating forum that could link with the NAW Committee.Difficulties could therefore arise if different guidance/decision-making structures areestablished for the Welsh marine environment, while the wider UK and international regimesremain the same.

An alternative, although not necessarily a mutually exclusive, approach could involve theestablishment of a new National (Wales) agency, or the expansion of an existing one. Thiswould inevitably require further legislative reform to transfer responsibilities between and/orfrom existing agencies and provide a statutory basis for its functions. The agency would fulfil asimilar role to the above committee, and could conceivably take over its functions in the longerterm. Alternatively, the agency could facilitate the work of the committee by assumingresponsibility for reform at more technical, detailed levels, including implementation andmonitoring of strategies, programmes and/or policies. The agency could also fulfil an advisoryfunction beyond the limit of the WTS. Having a dedicated, accountable agency with suitablyqualified staff and adequate resources, would provide a focal point for reform and facilitateinter-agency liaison. A single agency would also have an overview of the reform process and be

125 At the time of writing, the Marine Policy Officer is yet to be appointed. The key functions of the position, inter alia, willbe to devise and develop policy on marine environmental issues relating to Wales; advise on the implementation ofmarine nature conservation issues and to lead on the Review of Marine Nature Conservation; take forward work on thedesignation and future management of marine nature conservation sites under Natura 2000; coordinate and take thelead on the Marine Stewardship report and Seas of Change; and represent Wales� interests in UK and EU policydecisions.

63

best placed to coordinate policies and programmes at different levels. It is debatable whetherany of the existing agencies are adapted, motivated or empowered to assume the responsibilitiesof the lead agency. It has also been argued that a dedicated Marine and Coastal Agency couldinternalise conflicts and debate on coastal/marine issues and create further artificial divisionsbetween �terrestrial� and �marine� bodies. There would also be significant resource issues to beaddressed in setting up a new agency, or even expanding the remit of an existing agency.126

4.7 CONCLUSION

This report has highlighted the present inadequacies of the regulatory and managementframework for addressing the needs of integrated coastal and marine management. Thefragmented sectoral approach to regulation and management has resulted in weak horizontal andvertical networking between and within organisations with the resultant confusion over �whodoes what�. Existing laws affecting stakeholders are not always adequate and impose limitationson the ability of organisations to work together, often resulting in duplication of effort.

The complex framework of national laws affecting the coastal and marine environment hasinevitably created many anomalies that can only be removed by legislation. Any suchinstrument needs to include an over-arching vision and a long-term strategy for the protection ofthe coastal and marine environment, so that each sector when considering its obligationstowards environmental protection has a clear set of objectives and environmental values againstwhich decisions can be taken.

The task of any proposed legislative reform will be to bring together and consolidate theexisting plethora of coastal and marine legislation into a coherent whole, without re-writingexisting legislation. Integrated management requires a comprehensive and integrated approach,which reflects the interdependent nature of land and sea and the relationship between thestakeholders involved in its administration and use. Artificial legal distinctions betweenterrestrial and marine jurisdictions should be avoided, but the integration of administrativefunctions should be specifically designed to match the dynamic character of the marineenvironment. Practical solutions must also overcome the jurisdictional barriers betweenoverlapping sectoral authorities, removing legal impediments to cooperation and providingpowers and duties for them to cooperate and coordinate their actions.

The process of change involved in strengthening the planning and management structure of theWelsh marine environment is as important as the nature of change. International experience hasshown that the move towards more integrated coastal and marine management may be subject tosetbacks and is more likely to occur through an incremental process rather than a suddenchange. Constituency building for reform is paramount. Without the political will gainedthrough the �hard sell� of potential benefits, little permanent and effective change will occur.

126 This may occur irrespectively, as a result of the Haskins Report and ensuing streams of work currently under way. Asuite of sub-groups were expected to report to government in May 2004 on recommendations for an independent non-political agency for terrestrial and marine environments.

64

4.7.1 Recommendations

The output of this study and following workshop (Part B) should provide the basis for a morein-depth review of legislation and governance structures related to the Welsh marineenvironment. As a precursor to any reform, the collection, collation and evaluation of baselinedata on the whole area under the jurisdiction of any new legislation would appear to beimperative. There is much work already being undertaken � what is missing is a coordinatedeffort to bring nationally significant information sources together in an accessible format inorder that gaps in the knowledge base can be addressed.127

The legislative, policy and governance framework should also be comprehensively assessed interms of effectiveness and ability to meet the needs of a more integrated ecosystem-basedapproach. This would be a significant undertaking, building upon the initial review presented inthis report, as amended and modified by workshop participants. Arguably, such a study shouldbe coordinated by the Environment, Planning and Countryside Committee of the WAG withassistance and guidance provided by a steering group comprising WCMP members and (ofparticular importance) benefiting from expert legal input. A key outcome of this detailed reviewcould be a Welsh Consultation/Issues Paper identifying, within the current devolved functionsof the NAW:• amendments required to existing statutes to remedy gaps or inconsistencies in the legislative

framework;• existing powers available to the NAW under devolved legislation that have not yet been

utilised;• obsolete legislation and regulation that could be repealed;• recommendations for the potential amendment of the roles and responsibilities of relevant

authorities;• recommendations for structural changes that would assist in streamlining marine regulation;

and• provisions for the NAW to �opt back out� of legislation being developed in Westminster if,

during its passage through Parliament, it were amended in a way that made it lessacceptable to Wales.

Finally, it is also recommended that the WAG develop a long-term strategy for the sustainablemanagement of WTS, including protection of the coastal and marine environment, so that eachsector has a clear set of objectives and environmental values against which decisions can betaken.

127 The government�s next Marine Stewardship Report will report on the state of the UK seas and may set out plans formonitoring and evaluation. However, it is unclear whether the report will look specifically at Wales� territorial seas andthe state of species and habitats of Welsh importance within it.

65

Part BLegislative reform for the Welsh

marine environment

WWF Cymru Workshop ReportManaging Welsh Marine Waters: Options for Change

24 February 2004

Hance Smith

66

INTRODUCTION

A workshop was organised as the next phase of the work programme, in order to engage widerstakeholder participation in the study and encourage comment and feedback on some of the keyissues raised by the report Legislative Reform for the Welsh Marine Environment (Part A). Theworkshop was arranged to coincide with a meeting of the Wales Coastal and MaritimePartnership (WCMP) in order to ensure adequate representation of interests and wide-rangingfeedback from diverse interests involved in the planning, management and regulation of theWelsh marine environment.

Attendees at the workshop were asked to participate in one of four break out groups organisedinto three break out sessions that dealt with themes arising from the analysis and interviewsundertaken as Part A of this study, and the accompanying Topic Papers.1 The themes of thebreak out sessions were:• A vision for the management of Welsh marine waters;• Shortcomings in the current legislative framework for managing Welsh marine waters;• Options for reform of current legislative and policy framework for managing Welsh marine

waters.

In the final plenary session a preliminary assessment was made of overall workshop choiceoptions for reform.

The organisation and management of the respective break out sessions and the plenary sessionare described below, together with the outcomes. We are very grateful to those who participatedin the sessions, and especially those who acted as facilitators and rapporteurs.

BREAKOUT SESSION 1: A VISION FOR THE MANAGEMENT OF WELSH MARINE

WATERS

Four breakout groups were randomly selected and provided with a flip chart with prepared listsof improvements/priorities as follows:

Integration: Discussion focused on greater integration at a number of levels, particularlyamong organisations. Greatest emphasis was placed upon horizontal integration amongorganisations at regional, national and local levels respectively. Also considered important wasvertical integration between UK/Welsh, and Welsh/local levels. The need for greater integrationbetween public, private and voluntary sectors was acknowledged, as was the need for greaterintegration between science and policy.

Governance: A number of themes were highlighted. At organisational level the importance ofinclusion and subsidiarity were underlined. In operational terms clarity, transparency andconsistency were needed, while greater public awareness and involvement are important forconflict resolution and prevention.

1 Workshop participants received copies of the latter prior to the workshop to allow them opportunity to formulate their

thoughts and observations and, if necessary, consult with colleagues. The series of 12 Topic Papers is available online

at: www.earth.ac.uk/research/mace/WWFProject.shtml

67

Overall approach: The need for spatial, planning, an ecosystem-based and precautionaryapproaches to management was a recurring theme in the discussions.

BREAKOUT SESSION 2: SHORTCOMINGS IN THE CURRENT LEGISLATIVE

FRAMEWORK FOR MANAGING WELSH MARINE WATERS

Four breakout groups were organised broadly along the lines of their specialised experience asnoted below. Each group had a common set of considerations based around:

Legislation: Considerations included complexity, specificity, gaps/omissions, overlaps,consistency, lack of overall framework, terminology and its interpretation and adaptation of theterrestrial legislation to the marine environment;

Administration: Considerations included complexity including the range of statutory bodiesinvolved, issues relating to secondary legislation and delegated powers, division andinconsistencies between England and Wales, and jurisdictional boundary issues between landand sea and within estuaries.

Commencement issues: These included discretionary decision-making, implementation,enforcement, policy generation (e.g. ad hoc/reactionary/pro-active), and the extent of non-statutory policy/guidance and its effectiveness e.g. in relation to institutional and other barriers.

Group A: General development, mineral and energy industries

This group covered the general urban industrial development field, characterised among otherthings by the specific location of large scale industrial developments and correspondingly largescale environmental impacts both at the coast and offshore. These were covered by thefollowing Topic Papers:

1 General Development (including the Town and Country planning system)

2 Marine aggregate dredging

3 Marine energy

This group emphasised the lack of an overall legislative framework, and the presence ofconflicts within legislative provisions e.g. the Habitats Directive on the one hand and theWastewater Directive on the other. The need for definitions of the marine environment wasimportant, including its landward extension and cross-boundary issues between England andWales. Overall, however, perhaps the strongest theme in this discussion concerned the lack ofdata and information with regard to management needs. It is necessary to gather baselineinformation to fill knowledge gaps, monitor change and ensure cross-sectoral involvement.

Group B: Military activities; ports shipping and navigation; and leisure and recreation

This group covered activities where transport and movement are primary characteristics. Thesethemes are covered by the following Topic Papers:

4 Military activities

68

5 Ports, shipping and navigation

6 Leisure and recreation

Key themes in this discussion centred around the presence of ad hoc policy generation andenforcement as priority shortcomings; enforcement is an issue not because of a lack oflegislation but because some of it is not enforceable and there is too much of it. The group wasnot keen to see more legislation � group members wanted to see rationalisation of existinglegislation and more education about what we have and how it can be used. It was consideredthat the marine environment could be managed better by focusing on education rather thanlegislation.

Group C: Sea fisheries; nature conservation and landscape protection and marine

heritage and archaeology

This group covered activities concerned with living resources and related environmentalaspects, and the natural and cultural heritage. These themes are covered by the following TopicPapers:

7 Sea fisheries

8 Nature conservation and landscape protection

9 Marine heritage and archaeology

There was a very strong emphasis on the complexity of the present legislative framework.Related to this is the need for simplification, and difficulties of enforcement � perhaps notsurprising in both fisheries and conservation contexts. Stakeholders such as fishermen can feelsomewhat disenfranchised in this type of management situation, where complexity is alsopresent in the administrative arrangements. The importance of jurisdictional boundaries and anecosystem approach were also noted.

Group D: Coastal and marine environment

This group covered waste disposal and pollution control, coastal defence and shorelinemanagement, and environmental cross-cutting measures. These themes are covered by thefollowing Topic Papers:

10 Waste disposal and pollution control

11 Coastal defence and shoreline management

12 Environmental cross-cutting measures

Legislative and administrative complexity were reiterated in this group�s discussions. This leadsto a lack of joined-up legislation and differences in interpretation of legislation. Legislativechanges that would increase bureaucracy should be guarded against. The importance of clearjurisdictional boundaries was underlined.

69

BREAKOUT SESSION 3: OPTIONS FOR REFORM OF CURRENT LEGISLATIVE AND

POLICY FRAMEWORK FOR MANAGING WELSH MARINE WATERS

The original four random groups were reconstituted for this session. The options consideredwere:

• the status quo;• non-statutory coordination of existing laws, involving expansion of the policy framework;• statutory framework for the coordinated implementation of existing laws; and• comprehensive legislative reform to produce an integrated sea use planning and

management system.

For each option, groups considered the interpretation of what was meant by each option;delivery; issues associated with each option; and benefits associated with each option. Acarousel approach was adopted of rotating the groups to consider the option choices in turn.

Status quo: There was a general consensus that the status quo, with all the inherentshortcomings noted previously, is not really an option.

Non-statutory coordination: The advantages of this system is that it is comparatively well-known, although there was disagreement about this! This approach is flexible and adaptable andcan develop an ethos of cooperation and management through consent, putting voluntaryorganisations on a more equal footing with the public and private sector interests. It may bepossible to simplify the existing system to some extent, and changes can be relatively quicklyimplemented, especially in the short term.

Disadvantages include inability to enforce measures and non-accountability. All interestsrequired may not come together for particular purposes, and the private sector resourceimplications of particular measures can be problematic. It may be further contributing tooverstretch among voluntary organisations.

Statutory framework for coordination of existing legislation: There was notable support forthis approach, involving a relatively limited degree of legislative reform to promote keyapproaches such as spatial planning, ecosystem-based approaches and related considerations.Due attention would have to be paid to institutional arrangements, including identification oflead roles for particular organisations; and the financial implications of any major revision.

Emphasis was given to the influence of current and prospective European legislation and policyupon national legislation and policy in fields such as fisheries, conservation and environmentalaffairs. This is a powerful driver of current measures in coastal and sea use management.

Comprehensive legislative reform: Delegates found it difficult to envisage what wholesalereform would look like. At the general approach level it could lead to a plan-led system � i.e.the dominance of a spatial planning approach. It would probably be necessary to provide a leadgovernment agency or department on this, whether or not there was fundamental administrativereform as well in the form of a marine ministry. It was felt that the UK government should takeforward the Marine Stewardship Report and honour its commitments.

70

SESSION 4: WORKSHOP CHOICE: OPTIONS FOR REFORM

The final session was constituted as a short plenary, with reiteration of the options alreadydiscussed in Session 3 and limited discussion. There was virtually no support for the status quo;a notable degree of support for the non-statutory option; and strong support for the statutorycoordination of the existing legislation. The comprehensive reform option was not stronglysupported, which may be related to the difficulties, already noted above, experienced bydelegates in envisaging exactly what it would look like.

Appendix 1

LIST OF INTERVIEWEES

Gerry Quarrell Countryside & Coastal Policy, Welsh Assembly GovernmentPeter Jones Coastal Defence, Welsh Assembly GovernmentPhil Coates South Wales Sea Fisheries CommitteeJohn Lambert Environment Agency WalesNic Wheeler Pembrokeshire Coast National Park AuthorityMargaret Hill Countryside Council for WalesMadeleine Harvard Chair, Wales Coastal and Maritime PartnershipGlyn Perryman Fisheries Policy, Welsh Assembly GovernmentAdam Cole-King Countryside Council for WalesLynda Warren Professor of Environmental Law

Appendix 2

TA

BL

E O

F D

EV

OL

VE

D P

RIM

AR

Y L

EG

ISL

AT

ION

Statute Title &

Purpose

Relevant Sections &

Delegated P

owers

Bodies exercising

powers

INT

RO

DU

CT

ION

Sections 1-2: Provide for the establishment of the N

ational Assem

bly for Wales by C

entral Governm

ent as well as its

mem

bership

Central G

overnment � P

arliament

TR

AN

SFE

R O

F F

UN

CT

ION

S BA

SIS

Section 21: Future Parliamentary A

cts to confer powers directly on the A

ssembly

Section 22: provision allowing the transfer of m

inisterial and secondary legislation functions to the National A

ssembly

for Wales , through a Privy C

ouncil Order and so far as they are exercisable in relation to W

ales (wholly or Partly)

Sections 23-25: further specifications on the transfer of functions

Also Schedule 3

FIE

LD

S OF

FU

NC

TIO

NS (U

ND

ER

EX

ISTIN

GL

EG

ISLA

TIO

N) T

O B

E T

RA

NSF

ER

RE

D B

YO

RD

ER

S [Schedule 2 and 3]

Agriculture, forestry, fisheries and food

Ancient m

onuments and historic buildings

Culture (including m

useums, galleries and libraries)

Econom

ic development

Education and training

The environm

entH

ealth and health servicesH

ighways

Housing

IndustryL

ocal government

Social servicesSport and recreationT

ourismT

own and country planning

Transport

Water and flood defence

The W

elsh language

Central G

overnment � P

rivy Council

PO

WE

R / D

UT

Y T

O E

XE

RC

ISE &

FA

CIL

ITA

TE

TH

E E

XE

RC

IES O

F P

OW

ER

TR

AN

SFE

RR

AB

LE

BY

AC

EN

TR

AL

GO

VE

RN

ME

NT

OR

DE

R O

R O

TH

ER

EN

AC

TM

EN

T (ST

AT

UT

E)

Section 21: power or D

uty to exercise functions , which are transferred to the A

ssembly by the 1998 A

ct, or by orderunder the A

ct (including orders in council under section 22 of the Act) or w

hich are conferred or imposed on the

Assem

bly by or under the 1998 Act or any other enactm

ent

Section 40: Power to do anything, functions, w

hich facilitates or is conducive to or incidental to the exercise of any of theA

ssembly, functions.

Section 41: Power to enter into agency arrangem

ents with other public authorities or governm

ent department for the

carrying out the functions by or for the Assem

bly.

Governm

ent of Wales A

ct 1998

Purpose:

To establish and m

ake provision about theN

ational Assem

bly for Wales, the offices of

Auditor G

eneral for Wales and W

elshA

dministration O

mbudsm

an

To reform

certain Welsh public bodies.

To provide a basis for legislative functions

transferring to the National A

ssembly for W

ales

Sections 62 and 63: Power to delegate A

ssembly functions to an A

ssembly com

mittee, the A

ssembly First Secretary, an

Assem

bly Secretary of State or Assem

bly staff.

National A

ssembly for W

ales (NA

W)

Section 109: By enacting Schedule 8 of the 1998 A

ct ,this provision provides a procedure of dealing with �devolution

issues�, namely questions on w

hether a function is exercisable by the Assem

bly, whether that is a purported or proposed

exercise of a function �(etc.) and questions as to w

hether a failure to Act by the A

ssembly is incom

patible with any of

the Conventions R

ights (European C

onvention of Hum

an Rights)

PO

WE

R O

F N

AW

TO

TR

AN

SFE

R F

UC

TIO

NS O

F SP

EC

IFIE

D P

UB

LIC

BO

DIE

S

Section 28: Power to m

ake provision for the transfer of functions of public bodies specified in Parts I and II of Schedule 4to the A

ct to the Assem

bly, to a local authority or to other public bodies in Parts I to IV of Schedule 4 to the A

ct.

NA

W

DU

TY

TO

CO

NSID

ER

EU

RO

PE

AN

LA

W

Section 106: Assem

bly duty to comply w

ith Com

munity law

in the exercise of its functions

PO

WE

R T

O T

RA

NSP

OSE

EU

RO

PE

AN

DIR

EC

TIV

E F

OR

WA

LE

S

Section 29: If designated by order under section 2(2) of the European C

omm

unity Act 1972, pow

er under section 2(2) toim

plement by regulations E

uropean Union D

irectives which com

e within specified subject areas

.(See Also Schedule III, Part II)

See European C

omm

unities (Designation) (N

o.3) Order 1999 S.I. 1999/2788) for the subject areas for w

hich NA

W can directly im

plement

European D

irectives. None of the subject areas relate to the direct m

anagement and planning of the m

arine and coastal environment.

NA

W

SUB

OR

DIN

AT

E L

EG

ISLA

TIO

N P

RO

CE

DU

RE

S

Section 44: Description of the legislative procedure, w

hich may be exercised by the N

AW

for the passing of subordinatelegislation

NA

W

PO

WE

RS T

O L

OB

BY

AN

D P

RO

MO

TE

WE

LSH

INT

ER

EST

S

Section 36: Power to hold polls for ascertaining the view

s of the public.

Section 37: Power to prom

ote private Bills in Parliam

ent.

NA

W

FIN

AN

CIA

L A

RR

AN

GE

ME

NT

S AN

D A

CC

OU

NT

AB

ILIT

Y

Sections 97-103: Spell out the Assem

bly�s financial accountability and provide for a procedure under which the

Assem

bly is audited

Sections 104-105 : Specifically spell out the funding arrangements of schools and forestry by the A

ssembly

This m

ode of funding could be adopted for the managem

ent of the coastal and marine environm

ent

NA

W

SUST

AIN

AB

LE

DE

VE

LO

PM

EN

T D

UT

Y

Section 121: Duty to establish a schem

e setting out proposals for the promotion of sustainable developm

ent in theexercise of the A

ssembly functions.

Imposed on N

AW

OT

HE

R P

OW

ER

S

Section 30: Power by O

rder in Council to be consulted by a M

inister before appointments are m

ade to specify publicposts.

Section 31: Duty to be consulted after the beginning of a Parliam

entary Session by the Secretary of State about thegovernm

ent legislative programm

e.

Section 32: Power to anything to support culture buildings of historic or architectural interest; the W

elsh language; sport.

Section 33: Power to m

ake representations about any matter affecting W

ales.

Section 35: Power to hold inquiries.

Section 38: Power to take legal proceedings.

Section 39: Power to enter into contracts.

OT

HE

R D

UT

IES

Section 107: Application of the convention rights in the H

uman R

ights Act 1998 to the exercise of the A

ssembly�s

functions.

Section 108: Duty to com

ply with international obligations.

Section 111 and Schedules 9 and 10: Duties w

ith regard to investigations and reports of the Welsh A

dministration

Om

budsman and H

ealth Service Com

missioner for W

ales.

Section 113: Duty to establish a Partnership C

ouncil for Wales betw

een the Assem

bly and local authorities.

Section 114: Duty to establish a schem

e promoting the interests of voluntary organisations.

Section 120: Duty to secure the exercise of the A

ssembly functions w

ith due regard to the principle that there should beequality of opportunity for all people.

NA

W

DE

FIN

ITIO

N O

F W

EL

SH T

ER

RIT

OR

Y W

HE

RE

IN F

UN

CT

ION

S AR

E E

XE

RC

ISAB

LE

Section 155(1)(2) : �Wales� Includes the sea adjacent to W

ales out so far as the seaward boundary of the T

erritorial Seaand any boundary betw

een the parts of sea to be treated adjacent to Wales and those w

hich are not, shall be determined

[See Transfer of Functions 1999/672, Schedule 3 for co-ordinates and delim

itation of water divided betw

een England &

Wales]

EN

GL

ISH B

OR

DE

R A

RE

AS

Schedule 3 ,Part I:

Sections 3: �An O

rder in Council under section 22 m

ay only include provision about a function so far as exercisable by a Minister of the

Crow

n in relation to an English border area if-

(a) the function relates to water resources m

anagement, w

ater supply, rivers or other watercourses, control of pollution of w

ater resources,sew

erage or land drainage, and(b) the O

rder in Council m

akes (or another such Order in C

ouncil has made) corresponding provision about the function so far as so

exercisable in relation to a part of Wales adjoining E

ngland or the whole of W

ales.�

BE

YO

ND

TE

RR

ITO

RIA

L SE

ASchedule 3 ,P

art I:Sections 4. (1) T

he power conferred by section 22(1)(c) includes pow

er to direct that any function under-(a) Part II of the Food and E

nvironment Protection A

ct 1985 (deposits in the sea), or(b) Part IV

of the Petroleum A

ct 1998 (abandonment of offshore installations),

so far as exercisable by a Minister of the C

rown in relation to W

elsh controlled waters shall be exercisable by the M

inister only afterconsultation w

ith the Assem

bly.2) In this paragraph "W

elsh controlled waters" m

eans so much of the sea beyond the seaw

ard boundary of the territorial sea as is adjacent toW

ales.(3) T

he power conferred by section 22(3) includes (in particular) pow

er to determine, or m

ake provision for determining, for the purposes of

the definition of "Welsh controlled w

aters" any boundary between-

(a) the parts of the sea which are to be treated as adjacent to W

ales, and(b) those w

hich are not,including pow

er to make different determ

inations or provision for different purposes; and an order under section 155(2) may include any

provision that by virtue of this sub-paragraph may be included in an O

rder in Council under section 22.

FU

NC

TIO

NS T

RA

NSF

ER

RE

D U

ND

ER

GW

A 1998:

Schedule 3:P

art IA

ny function is exercisable by a Minister of the C

rown in relation to the W

elsh language or any other aspect of Welsh

culture

The follow

ing functions under the stated legislation may be exercisable by a M

inister of the Crow

n beyond the territorialsea in relation to �W

elsh controlled waters�[the sea beyond the seaw

ard boundary of the territorial sea as is adjacent to Wales] only

after consultation with the A

ssembly:

(a) Part II of the Food and E

nvironment Protection A

ct 1985 (deposits in the sea)or(b)

Part IV, Petroleum

act 1998, (abandonment of installations)

PA

RT

II

Environm

ental Functions relating to W

ater, to be transferred in the manner described under S22:

under Part I of the Environm

ental Protection Act 1990, or

under Part II, III or VII of the W

ater Resources A

ct 1991under, or under regulations under section 2 of, the Pollution Prevention and C

ontrol Act 1999[note that there has not been

a transfer order enforcing this as yet]

Appendix 3

WORKSHOP PARTICIPANTS

Roger Bennett South Wales Marine FederationJackie Boarer D_r CymruJulie Boswell Environment Agency WalesSimon Brett Associated British PortsPhil Coates South Wales Sea Fisheries CommitteeJustine Cooper British Marine FederationRobin Copley Environment Agency WalesTony Daniel Cardigan Bay Fishermen�s AssociationMichael Dolan Farmers Union of WalesRichard Edwards Ceredigion County CouncilKevin Francis Associated British PortsTony Glacken City and County of SwanseaJohn Hamer Countryside Council for WalesCarolyn Heeps Crown Estate CommissionersSteve Holbrook Fisheries Policy, Welsh Assembly GovernmentEdward Holdaway Pembrokeshire Coastal ForumPhilip Holliday Associated British PortsMarloes Holtkamp Wales Coastal and Maritime PartnershipAngharad Huws Environment Division, Welsh Assembly GovernmentHelen Jenkins Environment Agency WalesAndy Jones RMC Marine Ltd.Steve Kern City and County of SwanseaSteve Knowles ASERAAllan Lewis Ceredigion County CouncilKatie-Jo Luxton Royal Society for the Protection of BirdsGesine Martin WDA Agriculture/Food PartnershipTori Melhuish Waterfront WalesRhys Morgan Environment Agency WalesGlyn Perryman Fisheries Policy, Welsh Assembly GovernmentTony Prater Royal Society for the Protection of BirdsSiân Rees CADWJill Thomas Marine Policy Officer, Welsh Assembly GovernmentRob Thomas Environment Agency WalesSusie Tomson Royal Yachting AssociationDavid Tudor Environment Agency WalesRichard Twining Welsh Yachting AssociationNic Wheeler Pembrokeshire Coast National Park AuthorityJames Wilson Deepdock LtdIan Wisby South & West Wales Fishing Communities Ltd.

RAPPORTEURS AND FACILITATORS

Sally Bailey WWF CymruIwan Ball Cardiff UniversityRhoda Ballinger Cardiff UniversityJan Brown WWF-UKKirsty Clough WWF-UKWendy Dodds Cardiff UniversityEvangelia Moutselou Cardiff UniversityMorgan Parry WWF CymruHaf Roberts WWF CymruHance Smith Cardiff UniversityTim Stojanovic Cardiff University

WWF Cymru

Baltic House, Mount StuartSquare, Cardiff CF10 5FH

Ty Baltig, Sgwar Mount Stuart, Caerdydd CF10 5FHt: +44 (0)29 2045 4970f: +44 (0)29 2045 1306

Picture credits Front cover images, left to right: ROHAN HOLT,

COUNTRYSIDE COUNCIL FOR WALES/CYNGOR CEFN GWLAD CYMRU;

COCKLE PICKER AND WINDSURFER, PHOTOLIBRARY WALES; ALUN

ROGERS, CARDIFF UNIVERSITY/PRIFYSGOL CAERDYDD. All back coverimages: ROHAN HOLT, COUNTRYSIDE COUNCIL FOR WALES/CYNGOR

CEFN GWLAD CYMRU

WWF-UK registered charity number 1081247 A company limited by guarantee number 4016725 Panda symbol © 1986 WWF ® WWF registered trademark Printed on recycled paper Project number 1835/June 2004

Cardiff University

PO Box 914Cardiff CF10 3YEt: +44 (0)29 20876647f: +44 (0)29 20874326

The mission of WWF – the global environment network – is tostop the degradation of the planet’s natural environment and tobuild a future in which humans live in harmony with nature, by:· conserving the world’s biological diversity· ensuring that the use of renewable resources is sustainable· promoting the reduction of pollution and wasteful consumption

www.wwf.org.uk/cymru