Nicola Canty
Nicola is an environmental lawyer specialising in marine, energy and public law. She has advised on judicial reviews, public inquiries and a wide range of regulatory and planning matters. She has broad experience of advising on issues relating to the marine environment, including licensing, planning, regulation and enforcement, and conservation matters.
Nicola was called to the Bar by the Inner Temple in 2006. She has a dual-capacity practice (i.e. operating as both an employed and a self-employed barrister), and has broad experience of working at both the self-employed Bar in Chambers and the employed Bar as a part of a law firm, at the national energy regulator Ofgem advising on renewable energy schemes, and is currently at the Department of Energy Security and Net Zero advising on nationally significant infrastructure planning.
Nicola provided the update for the titles on the Foreshore, and on Fisheries and Fishing, in the 2023 Reissue of Volume 16(1) of the Encyclopaedia of Forms and Precedents.
Practice Areas
Panel
- Contributing Author
Qualified Year
- 2006
Membership
- Bar of England and Wales
- UK Association for European Law
- Constitutional and Administrative Law Bar Association
Education
- LLM Environmental Law and Policy (University College London)
- BSc Oceanography and Geography (University of Southampton)
14 Contributions by Nicola Canty
PRACTICE NOTES
Appeals to the Environment Tribunal against marine licence variation, suspension, revocation and enforcement notices under the Marine and Coastal Access Act 2009
Types of marine licence notices
The Marine and Coastal Access Act 2009 (MCAA 2009) allows notices to be served by the relevant licensing authority or by an enforcement authority to secure compliance with rules concerning marine licences or licensable marine activities. Under MCAA 2009, s 108, regulations must be made by the appropriate licensing authority to ensure any person to whom a notice is given has a right to appeal against that notice...
Environment
PRACTICE NOTES
Deemed Marine Licences under Planning Act 2008 DCOs: MMO role, geographical scope, drafting, conditions, transfer and variation (England and adjacent offshore waters)
What are deemed marine licences?
The Planning Inspectorate (PINS) is responsible for examining and considering applications for nationally significant infrastructure projects (NSIPs) under the Planning Act 2008 (PA 2008). See Practice Note: Examination of nationally significant infrastructure projects—general. Where proposals fall within specified locations—principally the English inshore and offshore zones (see: Geographical scope of DMLs below)—section 149A of the PA 2008 allows development consent orders (DCOs) for NSIPs to include provisions which deem a marine licence to have been granted under sections 65–115 of the Marine and Coastal Access Act 2009 (MCAA 2009). Nonetheless, in practice, some promoters may prefer to lodge a standalone application for a marine licence with the Marine Management Organisation (MMO) instead of asking for it to be deemed through a DCO, as in certain situations that pathway can prove more efficient. The marine licence permissions for the Hinkley Point C new nuclear project serve as a clear example of opting for this route.
Role of the Marine Management Organisation
The MMO undertakes a number of distinct functions in respect of a deemed marine licence (DML). During the pre-application phase of a proposed development consent application, the MMO is one of the statutory consultees. The MMO would likewise participate during the...
Planning
PRACTICE NOTES
Harbour Orders in England and Wales: HROs, HCOs, HEOs and HRSs—Powers, Procedure, EIA, Marine licences, Consultation, Fees and Judicial Review
This Practice Note considers harbour orders sought by harbour authorities in England and at reserved trust ports in Wales; it does not address the power of the Marine Management Organisation (MMO) to make harbour orders of its own motion.
What are harbour revision, closure and empowerment orders and harbour reorganisation schemes?
Under the Harbours Act 1964 (HA 1964), a harbour means any natural or constructed harbour, and any port, haven, estuary, tidal or other river, or inland waterway navigated by sea‑going ships, including a dock and a wharf.
In most UK harbours, the duty to improve, maintain or manage the harbour rests with statutory harbour authorities (SHAs). SHAs derive their powers and obligations for a harbour from local Acts of Parliament (for example, for Poole Harbour, the Poole Harbour Act 1914) or from harbour orders made under the HA 1964. Each SHA is regulated by its own statutory instrument.
Harbour orders are a species of secondary legislation under the HA 1964 that either modify existing harbour legislation or bring new harbour legislation into force. Harbour orders under the HA 1964 include:
harbour revision orders (HROs)...
Planning
PRACTICE NOTES
Marine construction consenting: MCAA 2009 licensing, harbour orders, river works licences, navigation rights, environmental assessments and the Coastal Concordat
Marine licensing requirements for construction activities
A marine licence is needed to build, alter or upgrade any works within the UK marine licensing area where they are situated:
in or over the sea bed
on or under the sea bed
As well as projects where some or all construction occurs on the foreshore or elsewhere in the inshore region, developments positioned beside marine waters may still include elements that are fixed in, or even extend over, the marine area. Examples include placing scaffolding, or bridges across tidal rivers such as the River Thames, which remains tidal inland as far as Teddington Lock. These parts of the works are captured by the marine licensing regime in Part 4 of the Marine and Coastal Access Act 2009 (MCAA 2009).
For general information on applying for a marine licence, see Practice Note: Marine licensing—licence application procedure...
Environment
PRACTICE NOTES
Marine licence application appeals: internal review, procedures and time limits under MCAA 2009 and the Marine Licensing (Licence Application Appeals) Regulations 2011
Legislative context
Under the Marine and Coastal Access Act 2009 (MCAA 2009), the marine licensing regime brought in an independent route of appeal, allowing applicants to challenge licensing determinations taken pursuant to MCAA 2009, s 71. Section 73 of MCAA 2009 requires that supplementary regulations be made so that anyone seeking a marine licence can contest a licensing decision issued by the relevant licensing authority. That obligation was fulfilled by the Marine Licensing (Licence Application Appeals) Regulations 2011, SI 2011/934 (the Licence Application Appeals Regulations), which prescribe the procedure for appeals against licence application outcomes. These regulations therefore set out how such appeals are to be brought and determined. The Licence Application Appeals Regulations, SI 2011/934, are intended to promote openness in licensing decisions and to make the decision-maker answerable for the conclusions it reaches. From 6 April 2011, those applying for a marine licence have the right to appeal a decision made by the Secretary of State—or by the Marine Management Organisation (MMO) exercising delegated licensing functions—concerning a marine licence application...
Environment
PRACTICE NOTES
Marine licensing exemptions under the Marine and Coastal Access Act 2009: categories, conditions, notification, MMO approval and enforcement (Exempted Activities Orders 2011, 2013 and 2019)
Exemptions from the marine licensing regime
Certain activities that would typically be treated as licensable under section 66 of the Marine and Coastal Access Act 2009 (MCAA 2009) can, where specific stipulated conditions are satisfied, fall outside the marine licensing regime established by MCAA 2009 and therefore not require a licence. This approach applies only where the relevant criteria are met. Using exemptions allows regulators to act in a proportionate manner in the regulation of the marine environment, by making the licensing process swifter and more cost-effective wherever the activity is considered to present low risk. Although the proposed activity may not require a marine licence, other consents may still need to be obtained. See Practice Note: Marine licensing—construction.
Exemptions can be grouped into six categories as follows:
activities governed under other legislation
activities necessary for the safety of vessels or human lives
activities undertaken to prevent pollution
operational defence activities
certain types of maintenance by relevant statutory bodies
routine low risk activities
The Marine Management Organisation (MMO) has issued updated Statutory Guidance on exempted marine licensing activities, alongside a marine licence interactive assistance tool to check whether an exemption applies or to notify the MMO of the intention to carry out an exempt activity...
Environment
PRACTICE NOTES
Marine Management Organisation: legal framework, jurisdiction in England and UK offshore waters, statutory objectives, powers, marine licensing, fisheries enforcement and funding (MCAA 2009; Fisheries Act 2020)
Establishment of the Marine Management Organisation
The Marine Management Organisation (MMO) came into being on 1 April 2010 through the Marine and Coastal Access Act 2009 (MCAA 2009). It regulates activities at sea around England, and matters concerning vessels registered to ports in England, anywhere in the world. Further duties and powers followed in the Fisheries Act 2020. The MMO is an executive non-departmental public body. Working at arm’s length from government, it is accountable to the Secretary of State (SoS) for the Department for Environment, Food & Rural Affairs (Defra) and is part of the Defra Group. The MMO also has cross departmental responsibilities and, for these, is answerable to the SoS for each relevant department. Where statute permits, government may request the MMO to undertake additional functions or new work, either on a permanent or temporary footing. The decision to accept such work will be taken jointly by the SoS and the MMO Board. The MMO Framework Document sets out the broad governance framework within which Defra and the MMO operate. It explains the MMO’s core responsibilities, and describes the governance and accountability framework that applies between the roles of Defra and the MMO, and sets...
Environment
PRACTICE NOTES
OSPAR, the London Convention and London Protocol: legal and regulatory framework, EU/UNCLOS context, NEAES 2030, reporting and marine licensing—implementation in England and Wales
OSPAR
The OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic 1992 (OSPAR) is an international agreement rooted in the 1972 Oslo Convention against dumping and the 1974 Paris Convention, which expanded Oslo's scope to land-based marine pollution and the offshore sector. Those two instruments were later consolidated and developed through OSPAR, which further extended their combined reach. In 1998, a biodiversity and ecosystems annex was agreed to cover non-polluting human activities capable of harming the sea. For further details, see Practice Note: Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR)—snapshot. OSPAR deals with every source of contamination of the marine environment and the harmful impacts of human activities on it, applies the precautionary principle, and enhances regional co-operation through co-operative regional action across the North-East Atlantic region...
Environment
PRACTICE NOTES
Regulating Ports and Harbours: Harbour Authority Powers, Byelaws, Directions (General, Special, Harbour and Pilotage), and Harbour Revision and Empowerment Orders within International, National and Common Law Frameworks
Overview
A harbour authority is an autonomous, self-regulating organisation tasked with the safe stewardship and efficient operation of a harbour. Although substantial general law applies to ports and harbours, in most instances the particular powers, functions and obligations of a harbour authority are established by multiple local Acts and Orders, some of which date back centuries and continue to have effect, in full or in part, and remain in force today, whether wholly or in part...
Environment
PRACTICE NOTES
UK marine licensing of submarine cables and pipelines: UNCLOS, inshore/offshore regimes, MMO policy, devolved approvals, TEN‑E legacy, Electronic Communications Code, and pipeline decommissioning
International regime under UNCLOS
The deployment of cables and pipelines is recognised as a High Seas freedom under the 1981 UN Convention on the Law of the Sea (UNCLOS). UNCLOS also permits every State to place submarine cables and pipelines on the continental shelf. Existing lines must be taken into account so that access and upkeep are safeguarded. Although the UK, as a Coastal State, must not obstruct the laying or servicing of such infrastructure, it may adopt proportionate measures to prevent, minimise and manage pollution arising from pipelines. The precise alignment or corridor of any cable or pipeline on the continental shelf remains subject to UK approval.
Cables Scenario 1—cable route exclusively within inshore waters
Where a submarine cable lies solely within UK territorial waters (that is, up to 12 nautical miles from Mean High Water Springs (MHWS)), the activity requires a licence and the standard marine licensing framework under the Marine and Coastal Access Act 2009 (MCAA 2009) applies. The Marine Management Organisation (MMO) may impose its usual suite of conditions, including provisions for maintenance and removal...
Environment
PRACTICE NOTES
UK marine planning and licensing under the Marine and Coastal Access Act 2009: MMO, Marine Policy Statement, marine plans, Marine Conservation Zones, Highly Protected Marine Areas and marine recovery funds
Marine planning in the UK
Part 3 of the Marine and Coastal Access Act 2009 (MCAA 2009) underpins marine planning across the UK. Under MCAA 2009, devolved administrations act as the responsible marine planning authorities for their inshore and offshore waters, except for Scottish and Northern Ireland inshore waters, as marine planning for these areas is already provided for by the Marine (Scotland) Act 2010 and the Marine Act (Northern Ireland) 2013 (not available in Lexis Library). MCAA 2009 introduced a framework for safeguarding and managing the marine environment. It:
set up a strategic marine planning regime that defines local and national objectives and priorities for the seas, supplying the policy basis for licensing choices
revised licensing requirements and processes for specified activities in the marine area
created the Marine Management Organisation (MMO) as the government licensing and regulatory authority for the marine area
created a coastal path, enabling wider public access to the shoreline
introduced powers to designate and safeguard a new category of marine protected area: Marine Conservation Zones (MCZs)
Marine Management Organisation (MMO)
The MMO began operating in April 2010...
Planning
PRACTICE NOTES
UK statutory and competent harbour authorities: duties, powers and governance: pilotage, directions, dues, health and safety, environmental obligations, oil pollution, waste, wrecks and dangerous vessels
Duties and powers Harbour authorities
A harbour authority is an independent, autonomous, self-governing body with responsibility for the safe management and efficient running of a harbour. In most circumstances, harbours are administered and run by statutory harbour authorities (SHAs), empowered and governed by local legislation that is generally tailored to the specific requirements of the harbour in question. Different legislation sets out various, differing definitions. Under section 313(1) of the Merchant Shipping Act 1995 (MSA 1995), a ‘harbour authority’, in relation to a harbour, covers all persons entrusted with the function of constructing, improving, managing, regulating, maintaining or lighting a harbour:
the person who is the statutory harbour authority for the harbour; or
if there is no statutory harbour authority for the harbour, the person (if any) who is the proprietor of the harbour, or who is entrusted with the function of managing, maintaining or improving the harbour
The Department for Transport (DfT) published Guidance on Ports Good Governance in March 2018 for SHAs, whether it is a private port, a trust port, or a Local Authority owned port, to help to deliver their key aim of managing, maintaining and improving their harbour in the broad public interest. The Guidance...
Environment
PRACTICE NOTES
UNCLOS explained: history, maritime zones, high seas freedoms, institutions, dispute settlement, environmental duties, implementing agreements and the new BBNJ ‘High Seas Treaty’, with notes on domestic implementation
United Nations Convention on the Law of the Sea (UNCLOS)
Parties: 168
Adopted: 10 December 1982
Entry into force: 16 November 1994
Full text: United Nations Convention on the Law of the Sea
Subject [Catchwords]: International law of the sea; UNCLOS I and UNCLOS II
At its inaugural session in 1949, the International Law Commission (ILC) chose to pursue the codification and progressive development of multiple elements of the law of the sea. By 1956, the ILC had completed its final draft articles with accompanying commentary, which were circulated ahead of the first Conference on the Law of the Sea (UNCLOS I), convened in Geneva over nine weeks in 1958. UNCLOS I culminated in the four Geneva Conventions adopted on 29 April 1958:
Convention on the Territorial Sea and the Contiguous Zone
Convention on the High Seas
Convention on the Continental Shelf
Convention on Fishing and Conservation of the Living Resources of the High Seas
The second Conference on the Law of the Sea (UNCLOS II) met again two years later, in 1960, but then could not agree on the breadth of the Territorial Sea or on fisheries limits, and made no further contribution to the Law of the Sea...
Environment
PRACTICE NOTES
Wales marine licensing: Welsh Zone and Wales Act 2017, regulators, applications, fees, exemptions, register, appeals and enforcement
The Welsh Zone
The Marine and Coastal Access Act 2009 (MCAA 2009) amended the Government of Wales Act 2006 (GWA 2006) to establish the ‘Welsh Zone’. This comprises the sea next to Wales that falls within British fishery limits, calculated from Welsh baselines (set by section 1 of the Fisheries Limits Act 1976), and designated by an Order in Council under GWA 2006, s 58, or by an order of the Secretary of State under GWA 2006, s 158(3). The extent of the Welsh Zone is detailed in the Welsh Zone (Boundaries and Transfer of Functions) Order 2010, SI 2010/760, reg 3...
The Wales Act 2017
The Wales Act 2017 (WA 2017) commenced on 31 January 2017. It retains the single legal jurisdiction of England and Wales, while introducing a revised Welsh devolution settlement that shifts from a conferred powers model to a reserved powers model. The Act also expressly recognises the development of a distinct body of Welsh law across Wales over time, in effect...
Environment
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