1.1 This research project was commissioned by the European Wildlife Division of the Department of Environment, Transport and the Regions (DETR). It seeks to establish an authoritative and legally sound understanding of the extent of local authority jurisdiction in the marine environment.

 

1.2 The research was undertaken jointly by David Tyldesley and Associates, environmental planning consultants and Browne Jacobson, Solicitors. The research involved desk study, library and internet research and a questionnaire survey of every coastal local authority in England and Wales. Over 60% of all authorities responded to the questionnaire.

 

1.3 In general, local authority jurisdiction coincides with the authority's administrative boundary. It is clear, and has been consistently agreed in the past, that coastal local authorities have administrative control and jurisdiction over areas down to low water mark, in the whole of England and Wales.

 

1.4 However, in some cases, the administrative boundary, and therefore general jurisdiction, may extend seaward of low water mark, for example in estuaries, bays, inlets, creeks and channels.

 

1.5 In some cases local Acts of Parliament, Byelaws or Ministerial Orders, may extend the seaward boundary for particular purposes, for example, in the case of harbour authorities.

 

1.6 Furthermore, public general Acts may extend a local authority's jurisdiction, for particular statutory functions, below (seaward of) low water mark, even as far as the limit of coastal or territorial waters. Conversely, public general Acts can specifically restrict jurisdiction to low water mark, for particular purposes, even where a local authority's general jurisdiction might otherwise go beyond it.

 

1.7 Local authorities often own or lease part of the seabed below low water mark. In most cases these are very small areas such as those associated with piers or jetties. Some authorities own or lease larger areas of the seabed and their powers or responsibilities as owner or lessee eg powers to issue licences and permits, extend over such areas as they own or lease. However, proprietary interest in the seabed alone does not necessarily confer on the local authority jurisdiction for other purposes.

 

1.8 Thirty per cent of responding local authorities are the harbour authority for the harbour(s) in their area. A harbour area may, and generally does, extend below low water mark and the harbour authorities' administrative control extends generally over the defined harbour area. However, in order to undertake work and / or exercise other functions or controls beyond Mean High Water Mark (MHWM) the express consent of the Secretary of State is required in the form of an empowerment order, revision order or harbour reorganisation scheme.

 

1.9 Local authorities can be, and frequently are, represented on Sea Fishery Committees and sometimes other bodies with functions relating to the marine environment. In many cases the local authority makes a significant contribution to the funding of the body and may therefore be able to exert influence over the decisions of such bodies, which may affect areas below low water mark.

 

1.10 About 70% of local authorities are regularly consulted by other bodies about areas below low water mark.

 

1.11 The variable extent of local authority jurisdiction below low water mark in waters internal to baseline, such as estuaries, bays, inlets, creeks and channels, leads to widespread uncertainty, contrasting interpretations and some confusion amongst local authority officers about their jurisdiction over the marine environment generally.

 

1.12 Analysis of the physical characteristics of the coastlines of a sample of the relevant authorities indicated that the responses to the questions about estuaries, bays, inlets, creeks and channels did not correlate with the number, shape or size of these features in the authority's area. There is no pattern or consistency in the perceived extent of jurisdiction.

 

1.13 Approximately 41% of respondents whose authorities had estuaries, creeks, inlets, bays and channels considered they had some jurisdiction below low water mark over these areas; 59% considered they did not have such jurisdiction. About 28% of respondents considered that their authority had jurisdiction over the whole of an estuary, bay, creek, inlet or channel; 72% considered they did not. Of the 58 respondents who had an estuary in their area, over half considered they had no jurisdiction below low water mark at all. Less than one in five considered they had jurisdiction to the centre line, and just over one quarter considered they had jurisdiction over the whole estuary.

 

1.14 A considerable number of responding local authorities have led or contributed to non-statutory initiatives which involved areas below low water mark including Shoreline Management Plans and Estuary Management Plans (95.8%), and Coast and Beach Management Plans (35.3%).

 

1.15 About half of the responding local authorities were contributing to a Management Plan for a candidate Marine Special Area of Conservation (cSAC). Ten authorities had a Statutory Local Nature Reserve (LNR) and three had a Marine Nature Reserve extending below low water mark. Nine authorities had a Sensitive Marine Area and nine a Voluntary Marine Nature Conservation Area.

 

1.16 In general, local authority jurisdiction coincides with the authority's seaward administrative boundary which is usually low water mark. However, administrative boundaries and jurisdiction can, but do not always, extend to waters internal to baseline. Specific statutory provision can also extend jurisdiction, for particular functions, below low water mark. In other cases jurisdiction for particular functions may not extend below low water mark, even where a local authority's administrative boundary does so.

 

1.17 Generally, there is no correlation between a local authority's interpretations of its jurisdiction, or local statutory provisions, or local initiatives, or local practice and the nature of its coastline. This tends to add to the extent of uncertainty about a local authority's jurisdiction in the absence of specific statutory provisions.

 

1.18 Many bodies with analogous jurisdictions are likely to be working with, and consulting, local authorities (and vice versa), in accordance with well established procedures, in respect of specific statutory regimes. However, the variations of interpretation of jurisdiction across England and Wales is likely to mean that practice varies too. Some bodies may be used to the local authority operating in some analogous jurisdictions below low water mark, others will not. Much will depend on the statutory regime being considered, local practice, interpretations and the authority's administrative boundary.

 

1.19 In the interests of legal certainty and consistency, we would advise that if the government wishes to introduce new powers and/or duties in respect of marine nature conservation seaward of low water mark, that would involve local authorities, it will be necessary to introduce specific statutory provision to extend local authority jurisdiction.