Information and Advisory Note Number 36 Back to menu
1.1 With effect from 1 April 1996, Scottish Natural Heritage (SNH) became a statutory consultee under the terms of Part 1 of the Coast Protection Act 1949. Consequently, Coast Protection Authorities (those unitary councils with coastal jurisdiction) are now obliged to inform and seek the views of SNH on all coast protection works which they propose to carry out, although there is no duty on SNH to respond to the notice. SNH also provides comments to SOAEFD on the natural heritage implications of any such works which lie wholly or partly below Mean High Water Springs, through a non-statutory consultation for the Food and Environment Protection Act 1985. Under the Town and Country Planning legislation, a planning authority must consult SNH if a proposed coast protection scheme lies wholly or partly above Mean Low Water Springs and lies within or may affect a SSSI, SAC, SPA or, in certain circumstances (SO Circular 9/1987), a NSA. SNH may also be invited to advise the planning authority on planning applications for coast protection works or may choose to comment on such works even where designated areas or Natura 2000 species are not directly affected by the proposals. Finally, coast protection works were recently (1994) added to the list of Schedule 2 Category developments under the Environmental Assessment (Scotland) Regulations 1988, through which the EC 1985 Directive on Environmental Impact Assessment is implemented. Accordingly, such works may, where subject to local authority planning regulation, require an environmental assessment to be prepared, in conjunction with the proposals, should the development be likely to have a significant effect upon the environment (for instance, upon SSSls or Natura 2000 sites). In effect, these overlapping responsibilities may lead to:
1.2 This Note provides a brief summary of the legislation, the consultation
process and advice on how SNH staff should deal with consultations under the
Act. More comprehensive advice on the relative environmental impacts or benefits
of different forms of coastal defence is contained within Information and
Advisory Note No 73. Coastal erosion and defence: III. Coastal defences and the
natural heritage. Advice on the causes and consequences of coastal erosion, from
a conservation perspective, and the potential application of coastal cells is
contained within the Information and Advisory Note No 72 Coastal erosion and
defence. II. Coastal erosion and coastal cells.
2.1 The principal legislation defining the responsibilities for regulating coast
protection developments in Scotland is the Coast Protection Act 1949. This Act
has been amended by The Coast Protection (Notices) (Scotland) Regulations 1988
and The Coast Protection (Notices) (Scotland) Amendment Regulations 1996.
2.2 In addition, coast protection works have been included in the Schedule 2
category of
development in the Environmental Assessment regulations since 19 August 1994.
This means that, where new coast protection works are subject to development
planning regulation (i.e. if they fall under the terms of the Town and Country
Planning (Scotland) Act 1972, as amended), an environmental assessment (EA) of
the proposal may be required by the local planning authority if the development
is likely to have significant effects on the environment. Indicative criteria
have been provided by the Scottish Office to assist in identifying whether such
projects require EA. These are: if" the proposed development is within or likely
to have significant environmental effects on a sensitive location such as a
National Scenic Area, SSSI, or future Natural Heritage Area", or" there are
likely to be consequential effects on other lengths of coastline, inshore
waters, the ecology of the coast, or any future marine SPAs or SACs designated
under the Habitats Directive1'. Should the planning authority (which, in most
cases, is also the same as the Coast Protection Authority) choose not to request
an EA, the Scottish Office may, potentially, still insist upon the preparation
of one if they consider it warranted.
2.3 The final principal way in which coast protection development is controlled
is through the Food and Environment Protection Act 1985 (FEPA), which requires a
licence to be issued by SOAEFD prior to any construction or deposit on the
seabed (below Mean High Water Mark of Spring Tides). As SNH is consulted on all
FEPA cases, many staff have some experience of commenting on coast protection
proposals through this process. Additional powers to control development of
coastal defences are also contained in the Flood Prevention (Scotland) Act 1961
and the Land Drainage (Scotland) Act 1958.
3.1 This is an Act relating to the protection of the coast of Great Britain (i.e. Scotland, England and Wales) against erosion and encroachment by the sea, and providing for the restriction and removal of works detrimental to navigation. Under the Act, "sea" is defined as including the waters of any channel, creek, bay or estuary and of any river as far up that river as the tide flows. The Act defines "coast protection" as any work of construction, alteration, improvement, repair, maintenance, demolition or removal (including the sowing or planting of vegetation) for the purpose of the protection of any land against erosion and encroachment by the sea. For the purposes of coast protection (Part 1 of the Act), however, certain stretches of tidal waters are excluded, for reasons which are not explained in it. In Scotland, the excluded areas are:
3.2 In addition to the protection of land, the Act makes provisions for the safety
of navigation (Part 2 of the Act). These require that any person wishing to
undertake works related to coast protection must have the written consent of the
Department of Transport (DoT) if the work could cause obstruction or danger to
navigation, either while being carried out or subsequently.
3.3 Note that this latter provision means that, should DoT (under Part 2 of the
Act) choose to consult SNH on the effects of a proposal which also requires a
licence under Part 1, SNH would receive two separate Coast Protection Act
consultations for the same proposal (one statutory and one discretional). Such a
circumstance could arise if the proposed development was for coast protection
works likely to interfere with navigation (as opposed to some other development
with potential to be a navigational hazard). In the event that both planning and
FEPA consultations are also received for such a proposal, some cases may result
in SNH receiving four separate
consultations for a single coast protection proposal (see Section 5).
4.1 The powers and duties of the Coast
Protection Act in connection with the
protection of land are imposed on each
" maritime county borough or county district, which is known as the Coast
Protection Authority (CPA) for that area. In Scotland, the CPAs were formerly
the Regional and Islands Councils. Following the re-organisation of local
authorities in Scotland on April 1st 1996, however, the new unitary authority
councils became the CPAs in mainland Scotland, and the three Islands Councils
continued in this role. The powers of a CPA, subject to the provisions of the
Act, include the power to undertake such coast protection work, whether within
its own area or that of another authority, as may appear to it to be necessary
or expedient for the protection of any land in its area against erosion and
encroachment by the sea. Note that this express statutory power does not obviate
the need for the authority to obtain any planning permission or other consents
necessary for the works in question. Except where works are solely for
maintenance or repair, or for urgently necessary emergency works, a CPA may only
undertake such work with the approval of the Secretary of State (i.e. SOAEFD).
Note, however, that there is no requirement to consult SNH where works are for
maintenance or repair only. There may be potential in some cases for such
maintenance or repair work to cause damage to, or disturbance of, natural
heritage interests.
4.2 A CPA may also require owners of coast
protection works to carry out maintenance or
repair works. In the event of a default, a CPA
may carry out such works and recover costs
from owners or occupiers. CPAs also have
regulatory powers to control the execution of
coast protection works in their areas. In most
cases, persons or bodies wishing to undertake
coast protection works must obtain the written
consent of the relevant CPA. Excluded from
this requirement are works undertaken by
another CPA, by any authority or body upon
which powers or duties have been conferred,
relating to the protection of land, or by a
roads, railway or harbour authority.
5.1 There is a prescribed (i.e. obligatory)
requirement in the Act (Section 5(1)), that a
CPA proposing to carry out any coast
protection work not solely for maintenance or
repair, must publish a notice of the work in
one or more local newspapers, and in such
other manner as required by the Secretary of
State. This flexibility of wording has enabled
two subsequent revisions to the Act:
1. The inclusion of an amendment in The
Coast Protection (Notices) (Scotland)
Regulations 1988 which requires a prescribed service of such a notice on a
number of public bodies, including every
harbour authority, fishery board,
conservancy authority and navigation
authority within whose area any of the
work is to be carried out (Section 2(2)).
SNH is not specifically included in this list,
as "conservancy authority" refers to
harbour conservancies. In our
experience, of all the previous CPAs, only
Grampian Regional Council routinely
consulted SNH on coast protection
proposals.
2. The inclusion of an amendment in The
Coast Protection (Notices) (Scotland)
Amendment Regulations 1996 which adds
SNH and the newly-formed Scottish
Environment Protection Agency to the list
of bodies for which there is a prescribed
service of a notice of coast protection work
proposals under Part 1 of the Coast
Protection Act 1949. The wording in the
1996 Amendment Regulations leaves no
ambiguity of interpretation. CPAs are
directed by statute to consult SNH on
all coast protection cases where notice
must be served under the terms of Part
1 of the Coast Protection Act. The
regulations do not, however, place a
duty on SNH to respond to the
consultations.
5.2 With regard to the nature of consultations
by a CPA and the concerns on which they
should consult, there is mention of the
grounds of objections which could be cause
for a local inquiry:
1. the proposed work would be detrimental to the protection of any land
specified in the notice, or
2. the proposed work would interfere with the exercise of the objector's
functions under any enactments other than the Coast Protection Act.
5.3 In the event of an objection, the Secretary of State shall either cause a
local inquiry to be held or shall give the objector (and to all other persons
appearing to the SoS to be affected by the proposal) an opportunity to be heard
by a person appointed by him.
5.4 Note that persons or bodies other than the CPAs, such as private landowners
and harbour, road or rail authorities, who wish to construct coastal defences
are not required to consult SNH under the Coast Protection Act. A CPA which must
nonetheless be given 28 days notice of such schemes may choose, however, to
inform SNH according to its own discretion. SNH should still be consulted in
such cases, where appropriate, under both the Town and Country Planning and FEPA
legislation.
5.5 Part of the Act provides the Department of Transport (DoT) with a
discretionary power to require notice to be given of any application under
Section 34 of the Act (" Restriction of won\s detrimental to navigation'), and
of any time within which, and the manner in which, objections should be made.
The DoT may direct this publication in such a manner as it considers appropriate
for informing persons likely to be affected by the proposal. If DoT feels it is
necessary, a local inquiry may be established before consent can be granted. The
first consultation received by SNH staff following the change in the law on 1st
April 1996 was received from the DoT, seeking SNH comments on a case under Part
2 of the Act. Note that the undertaking by DoT, of consultations with SNH for
Part 2 of the Act, is not a statutory responsibility but, rather, a
discretionary power.
6.1 Food and Environment Protection Act
Proposed coast protection works which fall partly or wholly below the Mean High
Water Mark of Spring Tides (MHWS, i.e. the upper line of the shore on 1:50000 OS
maps) require a licence from SOAEFD under the FEPA legislation. This includes
the tidal arms of rivers and creeks. SOAEFD is, however,
unable to address issues related to any part of a proposal which is above MHWS,
or any coast protection proposal which is wholly above MHWS. Despite this,
SOAEFD has frequently passed on to the developer the concerns expressed by SNH
in relation to those parts of any FEPA-related development above MHWS, with a
request that these issues are addressed or discussed further with SNH. Note that
there is no statutory basis to this request, as explained in Section 5.
6.2 Town and Country Planning legislation,
including environmental assessment
Scottish planning legislation has powers down to the Mean Low Water Mark of
Spring Tides (MLWS, i.e. the lower line of the shore on 1:50000 OS maps). This
means that any coast protection development wholly above MLWS may be covered in
its entirety by the planning control legislation, including the requirement for
EA, where appropriate. If, however, a coast protection scheme extends below MLWS
(or lies wholly below it), the portion below the MLWS line lies outside the
control or influence of the planners.
6.3 Coast Protection Acf1949
As outlined previously (Section 3), Part 1 of the Coast Protection Act relates
to any works intended for the protection of land against erosion and
encroachment by the sea. The area of influence of this part of the Act is not
strictly defined, but covers the shore, and the bed of the sea and the dry land
(adjacent to the shore". Under part 2 of the Act, DoT is provided with powers to
control any works likely to cause obstruction or danger to navigation (Part 2 of
the Act) on, over, or under the seashore lying below the high water mark of
ordinary spring tides (HWOST), which is approximately equivalent to the MHWS
upper limit of FEPA powers The Act defines "seashore" as * the bed and shore of
the sea, and of every channel, creek, bay or estuary, and of every river as far
up mat river as the tide flows, and any cliff, bank, barrier, dune, beach, flat
or other land adjacent to the shore". Excluded from this definition are the bed
and shore within the six areas mentioned in Section 3.1.
6.4 In consequence the area of influence of
the Coast Protection Act overlaps the areas
covered by the FEPA and planning legislation,
with all three sets of legislation applying to
those parts of coast protection proposals in
the intertidal zone, i.e. the zone marked
between MHWS and MLWS on OS maps (Figure 1). For coast protection proposals in
the six estuarine areas excluded from the terms of the Coast Protection Act (see
Section 3.1), there is still a requirement for the developer to obtain the
appropriate permissions under the terms of planning and FEPA legislation.
With regard to the likely effectiveness of SNH comments, the Coast Protection Act appears to be quite powerful, bearing more relation to the legislation for terrestrial development control (i.e. planning legislation) than to that for marine development control (i.e. Food and Environment Protection Act, FEPA). CPA consultations with SNH, under Part 1 of the Coast Protection Act, are now undertaken on a statutory basis, as are those with local authority planning consultations for coast protection works that are likely to affect designated areas. SNH is not, however, a statutory consultee under the terms of FEPA, and there is, therefore, no right of objection for SNH. As a result, there is no contingency for a local inquiry or other hearing through the FEPA process, should SNH or any of the other consultees have an outstanding objection to a proposal. FEPA does make contingency for a right of appeal by the applicant, by requiring a committee to be established to make a judgement on a sustained grievance over a licensing decision or licence conditions. An exception to the lack of a right of appeal for FEPA consultees like SNH may be for developments likely to affect marine SAC and SPA sites.
8.1 The best advice at present is to treat Coast Protection Act consultations in
the same way as planning and FEPA consultations, in terms of the content of the
response and the coastal natural heritage issues addressed. In the Town And
Country Planning system, it is recognised that SNH is a consultee representing
the national view of the natural heritage interest. In the same way, where the
Coast Protection Act mentions cause for objection as "interference with the
functions of the objectors", SNH staff should interpret this in the wider sense,
including not only SNH responsibilities for designated areas but also commenting
on issues related to the wider countryside, landscape and amenity. Developments
that occur outside designated areas may have effects on the natural heritage
interests of the site, as a result of interference with natural dynamic
processes, such as those responsible for sediment transport. Accordingly,
developments that occur near, but outside, designated areas need to be
considered in some detail. More detailed guidance on
potential natural heritage impacts of different forms of coastal defence is
contained within information and Advisory Note No 73.
8.2 While an additional consultation process will surely add to the burden of
casework on Area staff, this need not be too onerous, as any response to
planning or FEPA consultations should contain all the elements of concern and
comment likely to be necessary for the Coast Protection Act response. This
advice should be applied to consultations from both Coast Protection Authorities
(under Part 1 of the Act), and DoT (under Part 2). The wording of Part 2
consultations may suggest that SNH opinion is sought on navigational issues. It
is recommended, however, that SNH staff respond to both Part 1 and Part 2
consultations by referring to relevant natural heritage issues, indicating out
(where appropriate) the statutory roles of SNH.
8.3 Should a coast protection works proposal appear to SNH to pose a serious
threat to a designated area or wider natural heritage interests, SNH could, in
theory, object to the proposal under both the Coast Protection Act notice and
the local authority planning consultation process, where the latter had legal
jurisdiction (i.e. above MLWS). Such objections are likely to carry more weight
than an objection against the same proposal through the FEPA consultation
process, with the potential for a local inquiry to be held for outstanding
objections. SNH experience through numerous FEPA consultations indicates that
SOAEFD are likely to seek to resolve objections or concerns arising from SNH
through negotiation with both parties although, as indicated previously, SNH has
no statutory right of appeal against any decision made by SOAEFD under FEPA
(except, perhaps, where Natura 2000 sites are involved).
9.1 General guidance on responding to planning proposals is contained within the
SNH Scottish Local Authorities Handbook. Full reference should be made to the
draft SNH guidance manual prepared in 1995 for assistance with Food and
Environment Protection Act casework. This contains a considerable amount of
information on the different types of coast protection works, the civil
engineering processes involved, and how to begin assessing their potential
impacts on marine and coastal natural heritage interests.
Draft responses are also provided for FEPA consultations on coast protection
proposals. Other useful reference material is also indicated in the manual. Most
Area offices should already have a copy.
9.2 Technical advice on environmental impacts and opportunities of various forms
of coastal defence is available in Information and Advisory Note No 73. Coastal
erosion and defence. III. Coastal defences and the natural heritage. Further
guidance is available from:
Scot Mathieson (formerly of Aquatic
Environments Branch).
George Lees, Scottish Natural Heritage
George Lees, Coastal Geomorphologist
Sandy Downie, Marine Conservation Officer
Kathy Duncan, Coastal Ecologist
at
Advisory Services
Scottish Natural Heritage
2 Anderson Place
EDINBURGH EH6 5NP
Tel: 0131-447 4784