coastal zone planning law: role of law in management of the coastal zone in england and wales

The implementation of coastal zone management in England and Wales is dependent on the law. Many of the defects in the present law are the result of the historical property rights of the Crown in the foreshore and seabed, which have affected local government, planning, environmental assessment and nature conservation. The coordina- tion of administrative action is impeded by the ultra vires principle and the failure of sectorai laws to take account of their interrelationship. Nevertheless, although major legislative reforms are needed, several procedures already ex- ist whereby coastal zone management could be introduced.

John Gibson is a Lecturer in Law at the Centre for Marine Law and Policy, Cardiff Law School, University of Wales, PO Box 427, Cardiff CFl lXD, United Kingdom. Telephone: +44 (0)222 874346. Fax +44 (0)222 874097.

‘OJ C59, 6.3.92, p 1. ‘COM(92) 23 final, 27.3.92, Vol II, p 53. %. Gubbay, A Future for the Coast, Marine Conservation Society, Ross-on-Wye, UK, 1990. 4Turning the Tide: A Future for Estuaries, Royal Society for the Protection of Birds, Sandy, UK, 1990. ‘N.C. Davidson et al, Nature Conservation and Estuaries in Great Britain, Nature Conservancy Council, Peterborough, UK, 1991. ‘Heritage Coasts: Policies and Priorities 1997, Countryside Commission, Chel- tenham, UK, CCP 305, 1991, p 9. 7An Earthly Chance: Labour’s Programme

continued on page 119

Coastal zone planning law

Role of law in management of the coastal zone in England and Wales

John Gibson

During the 199Os, coastal zone management has become widely recognized as a major environmental issue both nationally and international- ly. In February 1992, the Council of the European Communities passed a resolution calling on the EC Commission to propose a Community strategy for integrated coastal zone management.’ This has been reflected in the Fifth EC Environmental Action Programme, which includes a separate action on themes and targets for coastal zones.2 Parallel developments have occurred within the UK. Reports by the Marine Conservation Society,3 the Royal Society for the Protection of Birds4 and the Nature Conservancy Council’ have drawn public atten- tion to the damaging pressures on the coastal environment from human activities and the perceived inadequacy of existing administrative arrangements to protect it. The Countryside Commission has likewise criticized the lack of a national policy framework for the coast as a whole in its strategy document on heritage coasts.6 Proposals for statutory coastal zone management plans have been included in the environmental policy statements of both the Labour and the Liberal Democrat Parties8 which attempted, albeit unsuccessfully, to introduce amendments to that effect into the Planning and Compensation Bill in 1991 .9

This accumulation of concern led to an inquiry by the House of Commons Environment Committee, which published a highly critical report on Coastal Zone Protection and Plannir@ in March 1992. Among the recommendations of the Committee were the consolidation and updating of coastal zone legislationi’ and the harmonization of landward and seaward planning control as far as the 1Zmile limit of territorial waters.12 The Committee did not, however, undertake a detailed investigation into the substance of the law. Although that omission is quite understandable, in view of the scale and difficulty of the task, it does nevertheless mean that a crucial element in the system of coastal zone management was not fully explored. Law is the principal medium through which administrative policy must pass before it can be

118 0308-597X/93/0201 18-l 2 0 1993 Butterworth-Heinemann Ltd


continued from page 118 for a Cleaner, Greener Britain, a Safer, Sustainable Planet, Labour Party, London, UK, 1990, p 29. ‘What Price Our Planet? A Liberal Demo- crat Agenda for Environmental Action, Liberal Democrats, Hebden Bridge, UK, 1990, pp 78-81. ‘HL Debs, Vol.525 29 January 1991, cols 691-698; HC Debs, Standing Committee F, 18 April 1991, cols 244-249; HC Debs, Standing Committee F, 30 April 1991, cols 421-425. “HC (1991-92) 17. “/bid, Vol I, para 19. 12/bid, Vol I, paras 46-52. ‘%ee, generally, J. Gibson, ‘Foreshore: a concept built on sand’, Journal of Planning and Environment Law, 1977, pp 762-770. 14A-G v Chambers (1854) 43 English Re- ports 486.

implemented by executive action, and therefore it exerts a pervasive influence over the process of management.

The aim of this article is to go some way towards redressing the situation by examining the contribution of law to coastal zone management in England and Wales. It begins by considering the ways in which the development of the modern law has been shaped by history, and seeks to identify and explain some of the problems that have resulted. The article then analyses features of the law that present particular obstacles to effective administration, and suggests how they may be overcome. Finally, it reviews the available legal mechanisms that can be utilized to facilitate the implementation of coastal zone management.

The legacy of the Crown

Many of the anomalous features of the present administration of the coastal zone in England and Wales are explicable in terms of constitu- tional history, and can be traced to the role of the Crown in the ownership of maritime property.

Foreshore and seabed ownership

After the Norman Conquest in 1066, all land became vested in the King as lord paramount, and was distributed among his subjects by feudal grant. Mediaeval grants of coastal estates were inevitably vague about the seaward boundaries of the land conveyed, since precision was neither necessary nor possible at the time. However, the drainage of saltmarshes to create agricultural land gave them a new value, and led to claims by the Tudor and Stuart monarchs that intertidal and subtidal areas had not been alienated and thus remained Crown property. These claims were reinforced following the surrender of the hereditary properties of the Crown to the State in 1760 by George III (in return for the income paid to the royal family under the Civil List) and the establishment of statutory commissioners with responsibility for the management of those estates under the Crown Lands Act 1829.‘”

Conflict between coastal landowners and the Crown was aggravated by the development of submarine mining for coal and tin, and led to the courts recognizing the separate status of intertidal property, which is legally described as the ‘foreshore’ and is vested prima facie in the Crown. In some places, it is possible to prove that the Crown has granted ownership to a subject, but about half the foreshore of the UK remains Crown property, and is administered by the Crown Estate Commissioners. The legal boundaries of the foreshore are linked to the mean high and low water marks, and are thus based on average tidal criteria. l4 This may be exp lained as a compromise solution to property disputes, but it also has the unfortunate effect of excluding areas that are regularly submerged or exposed by the tide and are indistinguish- able in character from the foreshore. Not only are average tidelines invisible, but they are altered by the physical processes of erosion and accretion, and the foreshore has the exceptional legal status of a moveable freehold.

Historically, the ownership of the territorial seabed beyond mean low water mark gave rise to less argument than the foreshore, but has recently become controversial in the context of marine salmon fishing. In 1990, the Scottish Court of Session ruled that the territorial seabed of the UK, like the foreshore, belongs to the Crown by virtue of the royal

MARINE POLICY March 1993 119


prerogative. l5 With the exception of a few estuaries such as that of the river Exe in Devon, l6 almost all subtidal areas within the limits of the territorial sea are vested in the Crown Estate Commissioners.

It seems reasonable to conclude that the involvement of the Crown in the ownership of maritime property is largely an accident of legal history. The Crown Estate Commissioners manage a wide range of properties, and the bulk of their revenue is derived from commercial buildings and agricultural land; only about 12% (fll million) is gener-

ated by the marine estates. I7 The Commissioners are effectively absen- tee landlords of the coastal zone, since they own a resource that they themselves cannot use, but their consent is needed for the activities of others that interfere with the foreshore or seabed, such as the erection of structures, the laying of moorings or the dredging of aggregates. In giving that consent, they are not merely bestowing property rights, but are also determining whether proposals should be implemented, and are therefore exercising a form of planning control. The Commissioners are governed by the Crown Estate Act 1961, which requires them to maintain and enhance the value of the Crown Estate and the return obtained from it.‘* Their principal objectives are thus financial, and although they must have regard to the requirements of good management, they are given no specific duties under this legislation to protect the environment. Moreover, the Crown Estate Act is essentially concerned with land management, and does not recognize or make provision for the special circumstances of the marine estates. In addition, as a statutory body, the Commissioners are not directly accountable to Parliament, and, inappropriately, questions about their role must be referred to Treasury Ministers. It is difficult to regard the Commissioners as logical custodians of the foreshore and seabed, and the House of Commons Environment Committee has recommended that they should be deprived of their quasi-planning powers,” but the government has so far resisted any transfer of functions.20

‘5Shet/and Salmon Farmers v Crown Estate Commissioners (1991) Scats Law Times 166. “The right of the Earls of Devon to part of the bed of the Exe estuary has recently been accepted by the Crown after a dis- pute lasting 152 years: The Times, 11 November 1992. “The Crown Estate: Report of the Com- missioners for the Year Ended 31 March 1992, Crown Estate Commissioners, 1992. ‘*Crown Estate Act 1961, s l(3). 190p tit, Fief 10, Vol I, paras 53-55. 20Department of the Environment, The Government’s Response to the Second Report from the House of Commons Select Committee on the Environment: CoastalZone Protection and Planning, Cm 2011, 1992, para 50. “In Wales, they are now called ‘communities’. %ection 27. %ection 72.

Local government and planning

Statutory planning controls over land use in England and Wales are administered by local authorities, and consequently do not extend beyond local government areas. The seaward limits of those areas are therefore crucial to modern coastal zone planning, but investigation shows that current local government boundaries have historically been influenced by the Crown’s ownership of the foreshore.

The smallest units of local government, which are combined to form larger jurisdictions, are parishes.21 In the 19th century, boards of guardians were responsible for the relief of the poor within each parish, and were empowered to levy rates on property in their area. Because the Crown was immune from rates, parishes ended at the mean high water mark, and did not include the foreshore. However, this had the undesirable effect of exempting privately-owned structures on the foreshore, such as piers and harbour works, from local taxation. To remedy this defect, parishes were extended down to the mean low water mark by the Poor Law Amendment Act 1868.22 This provision was re-enacted in the current Local Government Act 1972,23 and applies equally to the county and district in which each parish is situated. Thus, boundaries that were originally devised to demarcate property have been adopted for jurisdictional purposes without taking into account the needs of coastal zone management. Moreover, the situation is compli-

MARINE POLICY March 1993


24For example, Bristol. 25For example, Torbay. ‘“Ordnance Survey Act 1841. 27Journal of Planning Law, Vol 2, 1949, ~421. “HC Debs, Vol 54, Written Answers, 16 February 1984, ~01277; HL Debs, Vol496, 27 April 1988, col 287. 29Argyll and Bute District Council v Secret- ary of State for Scotland, Session Cases 248. “J. Gibson, ‘Local authorities and offshore petroleum development’, Lloyd’s Maritime and Commercial Law Quarterly, 1978, pp 305-306. See also C.M.G. Himsworth, ‘The limits of the planning realm’, Journal of Planning and Environment Law, 1977, pp l-24. 3’ Planning Policy Guidance: Coastal Plan- ning, PPG20, Department of the Environment/Welsh Office, September 1992, para 1.6. 32Crown Estate (Foreshore and Seabed) (Amendment) Bill, HC Bill (1982-83) 1961. %ommittee’of Inquiry into the Fu%o& and Powers of the Islands Councils of Scotland: Report, Cmnd 9216, 1984, para 7.14. 34HC Debs, Vol 144, Written Answers, 19 December 1988, col 89.

cated by a few local government areas that have been extended for varying distances beyond the low water mark in certain places by mediaeval charterz4 or local legislation?

The Poor Law Amendment Act also enlarged riparian parishes to the centre of rivers, but omitted to deal with the delimitation of estuaries, since this was not considered relevant to the rating system. However, since 1883, the Ordnance Survey, which has a statutory duty to depict local government areas, 26 has adopted an administrative practice of drawing a boundary across tidal estuaries at the point where the surface level of the river reaches the surface level of the sea at low water. This position, which is intended to reflect the spirit of the 1868 Act, inevitably depends on the flow of the river, and is often located some distance upstream from its mouth. Although the legal status of these boundaries, which are often inappropriate for estuary management, is questionable, they are widely assumed to be definitive. It is also unfortunate that rivers have traditionally been used as divisions between administrative areas, with the result that there is frequently more than one riparian local authority bordering an estuary, and the structure of management is correspondingly more complicated.

It is evident that where local government boundaries correspond to the mean low water mark on the open coast, planning control is confined within the same limits. There is some uncertainty, however, about the application of the existing planning system to those estuarial waters beyond the low water mark that are included in administrative areas by the Ordnance Survey. In 1949, a ministerial determination under the town and country planning legislation concluded that planning permission would be necessary in England and Wales for sand and gravel extraction in such waters. ” Similar statements have more recently been made in Parliament by government ministers in 1984 and 1988.28 Nevertheless, these opinions are contradicted by a decision of the Scottish Court of Session in 1976,29 which held that planning control in Scotland terminates at the low water mark everywhere on the coast, including narrow sea lochs inside local government boundaries. This decision is only a binding precedent in Scotland, and the reasoning of the Court is open to criticism,sO but it must be regarded as having persuasive authority in England and Wales, since it is based on the interpretation of identical planning legislation. On the other hand, any attempt to discover principles about the scope of planning law in the coastal zone by scrutinizing existing statutes is an artificial exercise, since they inevitably fail to deal with an issue that was not contemplated when they were drafted. Regrettably, the recent policy guidance on Coastal Planning issued by the Department of the Environment and the Welsh Office avoids addressing this dilemma, and merely states that for planning purposes ‘as a general rule’ the limit of the coastal zone in the seaward direction is the mean low water mark.“’

The status of estuaries would, of course, be resolved if planning control as a whole were enlarged to embrace the territorial sea. There have been repeated demands for such an extension during the last decade. An unsuccessful private member’s bill in 1983s2 was followed by the recommendation of a Scottish committee of inquiry in 1984 that the government should give serious consideration to extending planning control.33 The government did not accept the arguments, and reached a similar conclusion again in 1988.34 Nevertheless, the same recommendation has now been repeated by the House of Commons Environment



Committee,35 and although the government remains to be convinced about the merits of the proposal, it has accepted that the time has come to take the debate further, and has undertaken to publish a consultation paper on the subject during 1993.a6

It would be simplistic to suppose that existing planning legislation, which is essentially concerned with land use, could be applied to coastal waters without substantial modification. On the other hand, the problems are easily exaggerated. The elements of the present system that could most readily be adapted are those regulating ‘operational’ development, such as the erection of structures, the deposit of materials and the extraction of minerals. The absurdity of the present cessation of planning control at the low water mark is particularly obvious in relation to structures which cross that line and are only partially within the jurisdiction of local planning authorities. If planning permission is extended to operational development in the sea, some changes would of course be necessary in the application and enforcement procedures. It would, however, be rather more complicated to import into the marine environment the land-based controls over new activities that involve a ‘material change of use’. This is because current planning law envisages areas with fixed boundaries under single or limited occupation, whereas the sea is subject to multiple uses and the public rights of navigation and fishery. On the other hand, not all marine activities should need planning permission, and the less controversial categories of use could be given automatic approval by a general development order. The legal difficulties of introducing sea use planning should therefore not be insuperable.

350p cif, Ref 10, Vol I, paras 46-52. 360D cit. Ref 20. oaras 33-43. 37Cbun&l Direct/vi 85/337/EEC, OJ L175, 5.7.85, p 40. 38Town and Country Planning (Assess- ment of Environmental Effects) ‘Regula- tions 1988, SI 1988 No 1199. 39Harbour Works (Assessment of Environ- ment Effects) Regulations 1988, SI 1988 No 1336. 4os 34. 4’Harbour Works (Assessment of Environ- mental Effects) (No 2) Regulations 1989, SI 1989 No 424.

Environmental assessment

The deficiencies of land use planning as an instrument of coastal zone management are not confined to the system itself, but also have adverse effects on other regulatory mechanisms that are linked to it. The European Community Directive on Environmental Assessment37 required EC Member States to introduce procedures whereby consent for certain projects likely to have significant effects on the environment is not given unless the developer has submitted an environmental state- ment and that information has been taken into account by the development control authority. The UK chose to implement the directive principally through the planning system,38 even though the termination of planning control at the low water mark means that it is incapable of dealing with subtidal works. Since the directive specifically includes trading ports, yacht marinas and salmon breeding, but the government was reluctant either to extend planning control or create new organizations to deal with them, existing bodies have been enlisted to fill the lacuna irrespective of their suitability for that purpose. Thus, when the construction of harbour works needs authorization by a harvour revision or empowerment order under the Harbours Act 1964, the Department of Transport, which is responsible for making such orders, also deals with environmental assessment.” That Department performs the same function in relation to other works below the low water mark which need its consent under the Coast Protection Act 194940 because they are likely to interfere with navigation, but in this case the local planning authority considers the environmental assessment of any part above the low water mark, resulting in an awkward division of jurisdiction.41 Yet, as the primary concern of the Department of Transport is navigational



safety, it is hardly the most appropriate custodian of the coastal environment.

Marine fish farming for salmon usually needs a lease of the seabed from the Crown Estate Commissioners, and when exercising their property rights the Commissioners are now also entrusted with operat- ing the procedure for environmental assessment beyond the low water mark.42 Because of public anxiety about their impartiality as landlords and their competence as environmental managers, they are now assisted by a non-statutory advisory committee, but, although the Commission- ers have undertaken to accept its advice, they are not bound to do so, and it is therefore a compromise solution.

As owners of the seabed, the Crown Estate Commissioners are also involved in the environmental assessment of dredging for marine aggregates, but responsibility for forming a ‘government view’ on the acceptability of licence applications is delegated to the Department of the Environment or the Welsh Office. Although sand and gravel extraction is subject to the EC directive, the procedure adopted by the Crown Estate Commissioners is non-statutory, and is not governed by any domestic legislation. The same is true of offshore petroleum extraction. In the 14th round of UK oil and gas licences announced in March 1992, applicants have for the first time been required to submit statements to the Department of Trade and Industry detailing their policy towards the environment, but there are no legal regulations covering environmental assessment. It must be doubted whether in the context of offshore mineral extraction the UK has fully complied with its obligation to implement the directive, since administrative arrangements are not an adequate substitute for legal measures under Euro- pean Community law.43

Another instance where the directive seems not to have been properly implemented concerns projects that are given automatic planning permission by a general development order. Although these are subject to planning control, there is no need to submit a planning application, and thus no consent procedure to which environmental assessment can be attached. This problem has been recognized in the case of land drainage improvement works, such as modifications to existing flood defences, and regulations have been made giving responsibility for their environmental assessment to the Ministry of Agriculture, Fisheries and Food or the Welsh Office. However, there are other potential developments on coastal land which also have the benefit of automatic planning permission, but where no provision has been made for environmental assessment. An important example is the permitted development of operational land by statutory undertakers such as harbour authorities.44 Projects of this kind may have significant environmental effects within the terms of the directive. Although it is possible for most permitted development rights to be withdrawn by a local planning authority with the approval of the Secretary of State,45 this is an ad hoc remedy which is unlikely to satisfy EC requirements.

4ZEnvironmental Assessment (Salmon Farming in Marine Waters) Reaulations 1988, 31 1988 No 1218. - 43Commission v Belgium (Case 102/79) [1980] European Court Reports 1473; Commission v Italy (Case 145/82) (19831 European Court Reports 711; Commission v Belgium (Case 239/85) [1986] European Court Reports, 3645. 44Town and Country Planning General De- velopment Order 1988, SI 1988 No 1813, Sch 2, Pt 17. 45/hid, art 4.

Nature conservation

The influence of planning control and the effect of its limitations are evident also in the context of nature conservation. The principal mechanism for the protection of natural habitats in national law is the designation of ‘sites of special scientific interest’ (SSSIs) by English Nature or the Countryside Council for Wales under the Wildlife and



% 28. 47Treaty Series No 34 (1976), Cmnd 6465. %ouncil Directive 79/409/EEC, OJ L103, 25.4.79, p 1. 49Art 1. “‘Art 4. “Council Directive 92/43/EEC, OJ L206, 22.7.92, o 7. 52See J. ‘Gibson, ‘Marine nature reserves in the United Kingdom’, lnternafiona/Jour- nal of Estuarine and Coastal Law, Vol 3, 1989, pp 328-339. 53Lundy Island in the Bristol Channel and Skome; Island in south-west Wales. 5400 cit. Ref 10. Vol I. oara 19. % Gubbay, Coasfal’birectory for Marine Nature Conservation, Marine Conserva- tion Society, 1988, p 17. 56Legislafive Responsibilities in the Marine Environment, Nature Conservancy Coun- cil, 1989.

Countryside Act 1981.46 SSSIs enjoy a degree of protection from

potentially damaging operations by owners or occupiers, unless inter alia those operations are authorized by a grant of planning permission. The designation of SSSIs must therefore be notified to the local planning authority in whose area they are situated. Thus SSSIs are linked to the planning system, and although the legislation is not

explicit, it is officially assumed that they can only be designated inside planning authority areas and are inapplicable beyond the low water mark; otherwise, owners and occupiers of the seabed would be at a disadvantage compared with their counterparts on land, because they would be unable to seek planning permission in order to avoid the restrictions of an SSSI.

The UK has relied on SSSIs as the primary method of implementing

its international and European obligations for habitat protection, and has regarded the designation of such sites as a prerequisite for their protection under the Ramsar Convention on Wetlands47 and the EC Birds Directive. 48 However, the Ramsar Convention49 defines ‘wetlands’ as including areas of marine water up to six metres deep at low tide, and the Birds Directive” applies to sea as well as land areas. Although the UK has declared several estuaries to be Ramsar sites and ‘special protection areas’ (SPAS) under the Birds Directive, in reality they have only been protected under national law down to the mean low water mark. Moreover, SPAS are automatically part of the Natura 2000 network of ‘special areas of conservation’ (SACS) being introduced under the new EC Habitats Directive,“’ which is equally applicable to coastal waters. The SSSI system is consequently quite inadequate to discharge the UK’s obligations for nature conservation in the coastal zone. The only statutory designation currently available for subtidal areas is the ‘marine nature reserve’ under section 36 of the Wildlife and Countryside Act 1981, but experience has shown that it is extremely difficult to achieve the consensus considered necessary for the creation of such reserves,52 and only two53 have been established in more than a

decade.

The limitations of legislation

The House of Commons Environment Committee observed that ‘there are over 80 Acts dealing with the regulation of activities taking place in the coastal zone’, and concluded that current legislation is ‘too diffuse to provide an integrated or efficient framework for coastal protection and planning’.“4 The figure of more than 80 coastal Acts of Parliament has been quoted before,5s and is supported by a review of legislative responsibilities in the marine environment published by the Nature Conservancy Council in 1989,56 which lists 89 statutes affecting Eng-

land, Wales and Scotland. That review, however, is confined to acts having a direct bearing on the natural environment, and concentrates predominantly on the sea, excluding much legislation applicable to

terrestrial and intertidal areas. Consequently, the Environment Com- mittee has seriously underestimated the scale of coastal zone legislation as a whole, which covers a far wider range of issues. Indeed, virtually all laws that affect land or sea anywhere in the UK potentially apply to the coastal zone. General Acts of Parliament, moreover, represent only a fraction of the relevant legislation, and are outnumbered by a multiplicity of statutory instruments, local acts and by-laws. The Environment

124 MARINE POLICY March 1993


570p tit, Fief 10, Vol I, para 19. 5sO~ cit. Ref 20. oaras 25-29. ““Ob tit; Ref 10; c/o1 I, para 32. “‘Public Health Acts Amendment Act 1907, s 82; Public Health Act 1936, s 231; Public Health Act 1961, s 76. “‘Water Resources Act 1991, s 16. 62Water Industry Act 1991, s 3. %ea Fisheries (Wildlife Conservation) Act 1992. 64Harbours Act 1964, s 48A, inserted by Transport and Works Act 1992, Sch 3, para 6. ‘%ch 3, para g(6).

Committee’s recommendation 57 that coastal zone legislation should be consolidated is therefore simplistic; it fails to recognize that most of these laws do not relate solely to the coast, but deal with issues wherever they arise, and cannot be separated into coastal and inland elements without damaging their integrity. Accordingly, in its response published in July 1992, the government concluded that it would be impractical to consolidate the whole range of legislation affecting the coastal zone, although the need for updating is said to be kept continuously under review.58

It is inevitable that the management of a complex environment should involve equally complicated legislation. Far more important considera- tions are that such laws should be mutually consistent and should facilitate rather than impede the administrative process. An examina- tion of the ways in which laws currently operate in the coastal zone reveals several important aspects in which they fail to achieve these objectives, and provides instructive lessons for the future.

The ultra vires principle

The large number of enactments affecting the coastal zone is a reflection of the range of public authorities possessing jurisdiction there. The Environment Committee referred to an estimate of 240 such bodies,“’ many of which are governed by specialized legislation. If these organizations are to cooperate effectively, it is clearly essential that their legislation should permit them to act according to the best public interest. Unfortunately, statutory bodies are often constrained in this respect by the administrative law principle of ultra vires, that prevents

them doing anything that is not expressly or implicitly authorized by the enactments under which they operate. Although this doctrine is intended to prevent the abuse of power, it presupposes that Parliament has provided public authorities with adequate legislation, whereas in reality the law regularly fails to keep pace with new situations. For example, the powers of local authorities under the Public Health Acts60 to make by-laws regulating public activities on the seashore and in inshore waters were originally created to protect people from nuisance, and consequently cannot now be used for other desirable purposes such as the prevention of environmental damage.

The limitations of the ultra vires principle can be overcome if legislation is drafted in sufficiently wide terms to ensure that administra- tors are not simply custodians of sectoral interests. In recent years, there has been a trend towards including statutory duties to take account of nature conservation in the enactments governing public bodies whose primary responsibilities are in other fields. Thus, the National Rivers Authority,61 water and sewerage undertakers,62 sea fishery committee@” and harbour authorities64 have all received obligations of this kind. On the other hand, although such provisions extend the range of factors that must be considered before administrative decisions are made, they do not by themselves confer new powers to take positive action. However, the Transport and Works Act 19926” has now given harbour authorities, whose traditional role has concerned the mainte- nance of navigation, a discretion to seek specific environmental powers through harbour revision orders. Such selective reforms are useful, but they represent a piecemeal solution to a general problem.

Another, more subtle, consequence of the ultra vires principle is the way in which it can prevent restrictions being imposed in either



terrestrial or marine protected areas for the purpose of controlling activities there that have adverse effects outside their boundaries. This problem has been been experienced in relation to marine nature

reserves. M In the marine reserve that has been designated at Skomer Island in Wales, it was originally intended to exclude people and pleasure boats from an area of sea adjoining cliffs where sea birds nested, but this was found to be ultra vires because the reserve did not extend above the high water mark and so did not include the cliffs. Although the exclusion zone would have been inside the marine nature reserve, it could not legally be used for the benefit of wildlife outside its limits. In fact, the cliffs were within a separate terrestrial nature reserve, but this designation could not be employed either, since the source of disturbance was beyond its boundary at the low water mark. This example reveals the inadequacy of laws that are confined to either land or sea, and it demonstrates the importance of legislating for the coastal zone as a whole.

Interdependent jurisdictions

The practical relationship between different administrations in the coastal zone, which is crucial to effective management, is particularly dependent on the way in which their legal jurisdictions interact. There are two major respects in which the law is defective in this context.

First, legislation frequently fails to recognize the mutual significance of laws, often for historical reasons. One illustration concerns responsibility for coastal defences, which is implausibly divided between two different bodies. The National Rivers Authority is entrusted with ‘flood defence’ under the Water Resources Act 1991 and the Land Drainage Act 1991, and thus deals with the protection of low-lying land from temporary flooding. This function, which is now discharged by a national organization, can be traced back to mediaeval commissioners of sewers who had local responsibilities for the drainage of land, and has been progressively centralized through a series of transfers to successor bodies. In contrast, ‘coast protection’, which involves preventing permanent erosion and encroachment, is the province of local district councils acting as coast protection authorities under the Coast Protec- tion Act 1949. That act was passed as an emergency measure to facilitate the repair of coast protection works in seaside towns, which had been neglected during the second world war. The processes of flood defence and coast protection are physically connected, and it no longer seems logical that they should be legally separated. An amalgamation of functions has been considered in the past,67 but has been resisted by coast protection authorities on the basis that the National Rivers Authority lacks local accountability. However, existing legislation does not provide a clear basis for distinguishing the roles of the authorities or the distribution of coastline between them, and their relationship has been dependent on informal negotiation rather than legal principle.

660p cif, Ref 52, p 337. 67Financing and Administration of Land Drainage, Flood Prevention and Coast

fact that until the 19th century, when public health became a local

Protection in England and Wales, Cmnd government function, customs officers enforced the quarantine laws. In

9449, 1985, pp 20-21. 1980, customs ports were themselves reconstituted to reflect the straight

A second problem sometimes occurs when amendments are made to one jurisdiction without consideration of the effect that they may have on another to which it is legally linked. For instance, the districts within which port health authorities exercise public health controls over shipping are defined by reference to customs ports. This is a relic of the

126 MARINE POLlCY March 1993


baselines of the territorial sea.68 As a result, port health districts defined since then are also measured from those baselines, and thus include internal waters within bays. However, this change has not been taken into account in the Public Health (Control of Disease) Act 1984,“9 which provides for the implementation of the International Health Regula- tions by port health authorities, and confines them to three miles from the low water mark of ordinary spring tides, thus disregarding the straight baselines across bays. Consequently, because of a failure to appreciate the significance of developments in customs law, the geog- raphical extent of port health districts now exceeds the jurisdiction of the port health authorities that administer them.

Legal mechanisms for reform

While there are serious deficiencies in current legislation which need to be removed and significant improvements that ought to be incorporated in future laws, there are several existing legal mechanisms which could be utilized to facilitate coastal zone management. These include joint action by local authorities, the transfer of responsibilities to the National Rivers Authority, the use of harbour revision or empowerment orders, and the promotion of private or hybrid bills.

Joint local authority action

The first priority in the administration of the coastal zone must be cooperation between existing authorities. This is particularly necessary in estuaries, where the pressures are most acute and there is the largest concentration of public authorities. The Town and Country Planning Act 1990 already permits the Secretaries of State for the Environment or Wales to combine existing county or district planning authorities into joint planning boards. ” This, however, applies only to planning functions, and would require secondary legislation. A more flexible mechanism is available under the Local Government Act 1972,‘l which allows two or more local councils to arrange for almost any of their functions to be discharged jointly; they may also delegate responsibilities to joint committees or appoint advisory committees, which may include repre- sentatives from outside the councils. These powers could be used to enable riparian local authorities to cooperate formally in the exercise of their existing legal functions and to involve other bodies in the process of estuary management. There are, however, two qualifications to the effectiveness of this procedure. First, joint action is confined to the powers that the constituent authorities already possess, and unless the defects in them are removed by legislation, they will be subject to the same limitations as before. Second, although outside bodies may be permitted to participate in the discharge of local government functions, the performance of their own statutory roles cannot be included in the joint arrangement.

Transfer to the National Rivers Authority

?5ee J. Gibson, ‘The appointment of cus- The Water Resources Act 1991’” contains a procedure which could

toms ports’, Lloyd’s Maritime and Com- allow the National Rivers Authority to take over statutory responsibility

mercial Law Quarterly, 1981, pp 303-305. for the conservancy of an estuary and the control of navigation from an “% 13. 70s 2.

existing harbour authority, and combine this with its present responsibi-

“S 101. lities for flood defence, water quality and salmon fisheries. This can be

“Sch 2. achieved either by mutual agreement between the two bodies or



through an order made by central government. However, this option is only available if there is already a navigation, harbour or conservancy authority from which functions could be transferred, and although supplementary powers can be provided, it involves a redistribution of responsibilities rather than the creation of new ones. It would give the National Rivers Authority a central, but not exclusive, role in estuary management, which would still need to be coordinated with local councils and other organizations. On the other hand, because the National Rivers Authority is an appointed rather than an elected body, it may be thought to lack local accountability. It will in any case eventually be replaced by the prospective Environment Agency, but the substance of this power is likely to be preserved.

Hurbour revision and empowerment orders

The contribution made by harbour authorities to coastal zone management could be enhanced if their statutory functions were modified by local harbour revision orders under the Harbours Act 1964.73 These orders are made by the Secretary of State for Transport on the application either of a harbour authority or an interested person or representative body. Whereas in the past they were available only for commercial ports, the Transport and Works Act 199274 has now enlarged their scope to cover recreational harbours, and has simplified the application procedure. A harbour revision order could be employed, for example, to widen the decision-making structure of an individual harbour authority in order to give representation to other estuary users, or it could extend its by-law-making powers to include nature conservation measures. In places where there is no existing or effective harbour authority, an alternative procedure is provided for harbour empowerment orders,7” which could be used correspondingly to constitute a new harbour authority to administer a previously unregulated estuary.

‘Ts 14. 74Sch 3, para l(2). 75Harbours Act 1964, s 16

Private and hybrid bills

The most versatile method of introducing a new legal regime for the management of a particular estuary or coastal zone would be private legislation. This is a means of conferring particular powers or benefits on persons or bodies that are not available to them under the general law; it also provides a procedure whereby public authorities can amend the effect of general legislation in a local area. It could thus be used to remove some of the limitations of the existing law for estuary management, for example by broadening the scope of local authority by-laws. At the other extreme, it could facilitate the establishment of a new statutory body to manage an estuary; such a body would not be limited to performing the role of any existing category of authority, but could be given general responsibilities for management, together with specific powers of conservation, navigational control, licensing of works, making by-laws and imposing charges. However, a private bill must be limited to purposes that cannot be achieved by any other legal means, and it could therefore be rejected by a parliamentary committee if, for example, it sought to duplicate provisions within the potential scope of harbour revision or empowerment orders.

In some circumstances, the creation of a wide-ranging estuary management authority might require the promotion of a hybrid rather than a private bill. Bills affecting private rights are treated as hybrid if they

128 MARINE POLICY March 1993


affect public policy, amend or repeal public acts, involve a large area or a multiplicity of rights, or have a public matter as their main object. If a coastal zone bill qualified as hybrid, it could not proceed under the private legislation procedure, but would have to follow a special parliamentary process for hybrid bills. Such bills are in practice pro- moted by the government, which assumes responsibility for their costs and drafting, and its support for the policy objective of coastal zone management would therefore be essential.

Conclusion

This article has attempted to illuminate the special role played by the law in the administration of the coastal zone in England and Wales. Law is critical to any reform of the present system of management, but only if its nature and influence are properly appreciated will it be an agent of improvement rather than an impediment to progress. Coastal zone law is generally assumed to be replete with anomalies. Yet many of its defects are the inexorable consequence of a process of evolution dating back to the Middle Ages. The traditional property rights of the Crown in the foreshore and seabed have inadvertently determined the jurisdiction of public authorities, and their legacy has contributed to contem- porary problems in local government, planning, environmental assessment and nature conservation. The conventional principles of administrative law have also been diverted from their traditional role as procedural safeguards, and instead have become obstacles in the path of coordinated coastal zone management. In future, the effects of the doctrine of ultra vires must be very carefully considered when new legislation is drafted. In addition, laws affecting the coast should no longer be conceived in isolation, but should take full account of their relationship with other jurisdictions. Finally, although there is a patent need to amend many aspects of the existing legislation and to introduce new measures to fill gaps or replace defective elements, there is also a range of legal mechanisms already available which could be invoked as instruments of reform. The success of this depends on a better under- standing of the nature of law and of its contribution to the process of administration. Coastal zone management has become a popular environmental concept; coastal zone law now deserves equal recognition.


coastal zone planning law: role of law in management of the coastal zone in england and wales

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