Following a positive determination, the applicant may be required to implement various measures depending on the consent/licence conditions set by NRW MLT. It should be expected that all licences and consents for marine renewable energy projects will be subject to conditions. Such conditions will be identified during determination and set out in the licence. NRW MLT will give careful consideration before recommending the imposition of conditions to any consent. While the imposition of conditions can enable many development proposals to proceed where it would otherwise have been necessary to refuse consent, they are not a panacea and would not be imposed lightly. In particular, conditions will not be used as a means of shortcutting the consent process or employed on a purely precautionary basis.
The wording of conditions should be clear, concise and unambiguous and should incorporate the purpose of the condition. The applicant has a statutory duty to comply with the terms of the consent issued. Such conditions could be for survey and monitoring, specific design or construction methodology or any other aspect of the project. It will fall to the Welsh Ministers to enforce any conditions applied and once the consent has been granted, s36 conditions cannot be modified or amended in any way. The need for conditions should be discussed with NRW and key stakeholders from the pre-screening stage. This will help the applicant to be aware of potential conditions as early as possible and enable them to plan accordingly. It should however be noted that conditions cannot always be foreseen until the full determination process is underway.
Most consents and licences will have two sets of conditions.
- Standard conditions which generally apply to all proposals (e.g. notification of start dates).
- Specific conditions which relate to individual projects at its specified location.
It is common for licences to include conditions requiring the licence holder to submit post consent plans for agreement by NRW. Such plans might include (amongst others): Construction method statements, Cable routing and installation plans, Scour protection plans, Cable burial plans, Biosecurity risk assessments, Vessel routing Plans, Monitoring Schemes, Pollution Risk assessments and Contingency plans etc…
The specific plans required will be identified during the licence determination, though some may already have been identified through pre-application discussions.
The conditions will specify the timescale for submitting the plan. This will vary but can be some time before licenced activities commence (4 months is a common timescale for complex plans).
The conditions within the Construction Statement and MEMP can be applicable prior and during construction as well as through operation or decommissioning. Applicants should ensure that all project managers (and, if necessary, relevant subcontractors) are fully aware of all conditions and understand the need for compliance. NRW will provide clarification of any conditions if they are not clear. Some conditions may include timing constraints on all or some of the works, so an early and concentrated assessment of consent conditions should be provided for in the time schedule of the works. Should there be changes required to the project or design following the granting of consents/licences, the applicant should liaise with NRW, which will advise on the acceptability of the proposed changes. However, applicants should be aware that it may not be possible to change the terms of a consent or licence. A S36 Consent (for which the Marine Management Organisation is the Licensing Authority) cannot be varied after issue. Applicants should also be aware of the potential need to renew consents/licences and any lease agreements, and should keep independent checks on their status. Adequate finances should be made for instigating any necessary applications for renewal. The cost of such renewals will be advised by NRW and must be met in full by applicants.
Conditions attached to a marine licence can relate to maintenance, operational matters, require specific testing, keeping of records, remediation works and anything else Natural Resources Wales thinks suitable to mitigate the impact of a project. Marine licences may be issued for the lifetime of a project, for example the duration of a deposit or the life time of a construction, including its removal. The licence will therefore be valid during the operational and decommissioning stage of a project and the conditions contained will remain enforceable throughout its lifetime.
Specific conditions attached to marine licences are often split into categories. Examples of conditions are detailed below:-
Standard conditions include such requirements as:
- Details of contractors / vessels used to be provided to NRW in advance
- Notices to mariners to be made giving location details of the works
- Work must be carried out as detailed in application form, supporting documents and any agreed method statementsProject Specific conditions might include such requirements as:
- Submittance of post consent plans (as described above) for agreement by NRW, and compliance with such agreed plans.
- Geographical and/or temporal restrictions on work
Although NRW undertake the determination of Marine Licensing Applications on behalf of Welsh Ministers, the Welsh Government is the enforcement authority for marine licensing in Wales.
NRW may vary, suspend or revoke a marine licence granted by it only in certain circumstances:
- If there has been a breach of any of its provisions;
- If, in the course of the application for the licence, any person either supplied information to the authority that was false or misleading or failed to supply information which has made a material difference to the authority’s decision on the application
- Because of a change in circumstances or increased scientific knowledge relating to the environment or human health
- In the interests of safety of navigation;
- Or for any other reason that appears to the authority to be relevant.