Traditionally, the sea was the preserve of the seafarer and the fishermen. These two co-existing users were able to peaceably exist side-by-side for many years. The common law position is that the public has always had a right to fish in the tidal reaches of all rivers and estuaries and in the sea around the
In European waters this trend is fuelled by the current licensing regime under the common fisheries policy which is aimed at limiting and reducing the number of fishing licences and fishing capacity. As a result, that fishing capacity is becoming concentrated on fewer but more powerful and sophisticated vessels. There is, however, still a huge demand for seafood, with it being a major source of protein for developing nations and with TV chefs on every satellite channel extolling the virtues of recipes involving fish.
The problem is that the increase in fisheries during the past 50 years has not been in isolation. Those last 50 years have also seen a rapid expansion in marine-related activities. This increase has included offshore oil and gas exploration, aggregate dredging, leisure and recreation markets and significant increases in aquaculture. Another factor is offshore power generation. While wind farms are accepted as a desirable means of power generation, there is little appetite to base them on land and, therefore, placing them at sea is preferred. This may take them out of landowners’ backyards, but they instead pose a threat and obstacle to users of the marine environment.
In the past 30 years there has also seen an unprecedented move towards the protection of the marine environment, fuelled by an increase in education and scientific study, and a recognition of the huge demand for marine resources. Unfortunately, the law relating to marine usage has not kept pace with these developments and is still largely based upon the law of nuisance. The law of nuisance reflects its development over the past 200 years and it is, in many respects, not fit for purpose in the 21st-century marine environment. The
The result has been a piecemeal assortment of conflicting legislation, with no direction whatsoever. One only has to look at the legislation relating to the management of the inshore fishery to see that the main piece of legislation is the Sea Fisheries Regulations dating back to 1966, which itself is a re-enactment of legislation going back to 1888. Judicial review and declaratory proceedings to be heard in the High Court in
It is for these reasons that the Government has realised that the time is right for change and has indicated it will introduce a Marine Bill. The Bill will result in a more streamlined procedure for the granting of consents for works at sea, the creation of one organisation that will regulate and manage the marine environment and also the concept of marine spatial planning to try to manage conflicting uses of the sea. That latter concept of planning at sea will take some getting used to for the fishing industry, as it appears that in future the industry will not be able to roam as far and as wide as it has done to date and will be restricted to fishing in specific areas and possibly at specific times. Fishermen may then ask the question as to who is to tell the fish where to swim and where to be at specific times in order to be caught!
It is clear that the increasing use of the marine environment and the harnessing of its resources, both above and below the seabed, will cause tensions, disputes and the requirement for greater regulation, which in turn will mean greater involvement of the lawyers. Indeed, as available land-based resources come under pressure, it is likely we will see a whole new legal front open up in respect of marine planning and usage.
Andrew Oliver is head of the sea fisheries and marine environment unit at Andrew Jackson in
