Property rights and marine protected areas

Property rights in the marine environment differ from those on land and this difference has an impact on the legal framework for marine protected areas. The Site of Special Scientific Interest designation, which underpins terrestrial nature conservation in the UK, is only relevant at sea for intertidal sites and a few subtidal extensions. Legislation for Marine Nature Reserves, based on that for terrestrial National Nature Reserves, was unworkable because of government reluctance to designate sites in the face of stakeholder opposition. Regulations for the protection of European Marine Sites were made to implement the European Habitats Directive which covers very few marine habitats or species. The lacuna in legal protection was filled by the creation of the Marine Conservation Zone designation but the emphasis on features of particular value detracts from the objective of wider ecosystem protection. Protection for all types of marine protected areas is constrained by the need to consider the socio-economic consequences of regulation. The new pilot Highly Protected Marine Areas in England could tip the balance in favour of conservation but the rejection of two out of five candidate sites on the basis of the socio-economic concerns does not augur well for the future.

In the case of terrestrial nature conservation, the ownership and rights associated with property are an inevitable aspect of the process of designating and managing protected areas.Nowhere is this more obvious than in the chequered history of the Site of Special Scientific Interest (SSSI) designation where it has taken over 60 years to move from a requirement to give the landholder notice of the designation 1 , through a requirement for the owner or occupier to give notice of intent to carry out potentially damaging operations, 2 until finally there is a power to require positive management of a designated site. 3It might be thought the difficulties of resolving possible conflicting interests between landholders and the conservation bodies and the consequent complexities of the law governing designation and management would be avoided when it comes to marine conservation designations but unfortunately, this has not been the case.In those, largely intertidal, marine areas under private ownership the same issues exist; where there is no private ownership, the lack of a clear definition of rights has raised different, equally challenging issues.This article looks briefly at the nature of property rights in the marine environment before going on to consider whether the various protected area designations originally designed to provide conservation on land are appropriate for marine conservation or whether the designations tailor-made for the marine environment are likely to be more effective.

Ownership of maritime property
Ownership of property is a meaningless concept unless that ownership brings with it rights and, sometimes, obligations.Until recently, therefore, there has been no incentive to own marine lands.The sea is a dangerous, alien place for most people other than sailors and those engaged in fishing.It does not follow, however, that land beneath the sea belonged to no one and was terra nullius.When William the Conqueror rewarded his followers with grants of land, this occasionally included the seabed, especially in estuaries. 4For the most part, however, the King claimed the seas and seabed adjacent to the land as part of his sovereign territory and it has long been argued that the Crown has prima facie title to the foreshore and the seabed. 5This argument was supported by eminent lawyers including Sir Matthew Hale, writing in the seventeenth century and confirmed with respect to the foreshore in 1891 by the House of Lords in A-G v Emerson. 6In his judgment, Lord Herschell stated: 'It is beyond dispute that the Crown is prima facie entitled to every part of the foreshore between high and low water mark and that a subject can only establish title to any part of that foreshore, either by proving an express grant thereof from the Crown, or by giving evidence from which such a grant … will be presumed'.
The present position is that the Crown Estate is presumed to own the foreshore and seabed of the territorial sea unless there is evidence to the contrary.Accordingly, at least 50 per cent of the foreshore is known to come under Crown Estate ownership.Despite the fact that the public has free access to most of the foreshore around England and Wales, there is no common law right to use the foreshore except as an accessory to rights of navigation or fishing. 7he Crown's legal ownership of the seabed beyond the foreshore has not been judicially decided in the English courts but in the Scottish case of Crown Estate Commissioners v Fairlie Yacht Slip Ltd, 8 Lord Dunpark stated that 'the seabed within the territorial limit … [is] the property of the Crown … as part of the realm and [is] held by the Crown for the defence of the realm and for the benefit of its subjects'.
These remarks highlight the main justification for claiming that the sea and seabed adjacent to the land were part of a state's territory: defence.A cannon fired from land has a reach seaward of about three nautical 3.Under the Countryside and Rights of Way Act 2000 s. 75 and schedule 9. 4. For example, sea bed in the Severn Estuary which belonged to the Duke of Beaufort because it was included in a medieval grant of the Berkeley Estate. 5.For example, in 1635 John Seldon argued in his treatise 'Mare Clausum' that the sea was as capable of being owned as the land.miles and it is possible that this is the reason why most States claimed a territorial sea of three miles. 9ppreciation of other benefits that could arise from incorporating the sea and seabed in national territory came about because of increased pressure on fisheries.By the 1960s many States were claiming a territorial sea of 12 nautical miles and these claims were finally codified in the 1981 Law of the Sea Convention (United Nations Convention on the Law of the Sea, UNCLOS). 10 It is this Convention that sets out the rights and duties of coastal states with respect to different maritime zones.

Proprietary rights under international law
Although UNCLOS was signed in 1981, the very year that the UK was passing its first legislation for marine nature reserves, it was some 12 years in the making and its drafting reflects a time when environmental protection in general, let alone of the marine environment, was only beginning to be thought about.In essence, UNCLOS is about property rights in the sea.Where there are conservation duties, these are there primarily to ensure fair play between States rather than from any underlying understanding of the need for marine nature conservation. 11he main zones of interest for marine conservation are the territorial sea, the exclusive economic zone (EEZ), the continental shelf and the high seas.A state has full sovereign rights over its territorial sea subject only to the right of freedom of navigation for other states. 12A coastal state may adopt laws on the preservation of its environment and on the conservation of marine living resources 13 but it has no duty to do so.The only duties are to allow for the third party innocent passage. 14To all extents and purposes, therefore, the territorial sea is simply a seaward extension of the sovereign state.The EEZ, which extends to 200 nautical miles from territorial sea baselines, is somewhat different.In this zone, the coastal state has overall control of the use of living resources.It has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources living or non-living of the sea, the seabed and its subsoil and has jurisdiction with regard to the protection and preservation of the marine environment. 15Article 61 is entitled 'Conservation of the living resources' but it is clear from this and subsequent articles, that this is conservation with the purpose of ensuring that harvestable resources are not over-exploited but are managed so as to achieve optimum utilisation.Where the coastal state does not have the capacity to harvest the entire allowable catch, it has a duty to arrange for other states to have access. 16The only wider conservation duty is that measures designed to achieve maximum sustainable yield must 'take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations … above levels at which their reproduction may become seriously threatened'. 17here is an overlap both geographically and legally with the regime governing the continental shelf which comprises the seabed beneath the EEZ and in some cases extends beyond it.The coastal state has exclusive rights for the purposes of exploration of the continental shelf and the exploitation of its natural resources. 18For the most part, these are non-living resources but also include sedentary species. 19Because of the exclusivity, the coastal state owes no duties to other states specific to the continental shelf.
In the UK, the Crown Estate exercises the proprietary rights on behalf of the State.It is the owner by default of the foreshore and has powers to grant seabed leases and licences for specified activities on the foreshore, territorial seabed and continental shelf.Under the Crown Estate Act 20 the Crown Estate Commissioners have a duty to maintain and enhance the value of the Crown Estate in England and Wales and returns from it with due regard to the requirements of good management.The Scottish Crown Estate has a similar duty but, in complying with it, the Commissioners must act in a way that is calculated to further the achievement of sustainable development and seek to manage assets in a way that promotes economic development, regeneration social wellbeing and environmental wellbeing. 21nder UNCLOS, the high seas are open to all States so they have freedom of fishing, among other freedoms, subject to a duty to take such measures as may be necessary for the conservation of living resources. 22he 1995 Fish Stock Agreement expands on these duties. 23Its wording reflects changes in understanding of and objectives for marine conservation.For example, parties to the Agreement are required to apply the precautionary principle 24 and to protect biodiversity in the marine environment. 25Regional fisheries management organisations set up in accordance with the Agreement have the power to close areas as part of management arrangements.

Marine protected areas under international law
A number of international and regional treaties impose a duty on States to establish marine protected areas (MPAs) in areas under their jurisdiction.The Convention on Biological Diversity's Aichi Biodiversity Target 11 26 committed parties to ensure that 'by 2020, at least … 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures'.Similarly, parties to the OSPAR Convention agreed to the establishment of an ecologically coherent network of MPAs in the North East Atlantic by 2016. 27At the time of writing the United Nations is expected to adopt the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Treaty). 28This treaty expressly provides for the creation of MPAs, defined as 'geographically 26.The Aichi Targets were agreed at COP 10 in 2010 (https://www.cbd.int/sp/targets/).Following COP 15 in 2022, the target has been increased to 30% (https://www.unep.org/news-and-stories/story/cop15-ends-landmark-biodiversity-agreement).27.https://www.ospar.org/work-areas/bdc/marine-protected-areas.28.This is expected to happen at the fifth session of the intergovernmental conference on marine biodiversity of areas beyond national jurisdiction when it resumes in June 2023.
defined marine areas … designated and managed to achieve specific long-term biodiversity conservation objectives and may allow, where appropriate, sustainable use provided it is consistent with the conservation objectives'.For the first time, we have a treaty that prioritises marine biodiversity conservation over stock utilisation.
The treaty does not affect the basic principles of freedom of the high seas and there is no suggestion of any property rights being introduced.It is designed to provide mechanisms for States to cooperate in the management of the natural environment of the high seas.As noted in the preamble there is a desire 'to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biodiversity of areas beyond national jurisdiction'.

Property, rights and marine protected areas
The International Union for Conservation of Nature (IUCN) defines a protected area as 'a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values'. 29A MPA, therefore, can be thought of as a place whose boundaries can be drawn on a map or by reference to spatial coordinates and within which something is different from the surrounding place.At one extreme, the only difference might be a recognition of the scientific interest within the area being in some way more special than the area outside.At the other extreme, the presence of the boundary may indicate a no-go area in which all human activities are prohibited.Between these two extremes, there is a range of different levels of control and regulation.Property rights are integral features of these different types of protected areas.Such rights can be thought of as private, public or common rights and may include rights of access, exclusive or shared, and rights to extract resources.The situation is made more complex for protected areas at sea because of the lack of private rights of ownership of the seabed and the norm of open access.Whether they are legally defined rights or not, there have been many examples in the history of MPAs in the UK of the tensions between the desire to protect nature conservation interests whilst at the same time safeguarding the socio-economic interests of communities.As Rodgers 30 notes, environmental disputes are typically disputes over access to an economic resource and this is as much true of marine resources as it is of land-based ones.He goes on to argue 31 that it is a mistake to think in terms of private property, common property and public property because the boundaries between these are not fixed.Although he is writing about property rights on land, his arguments are also relevant for MPAs.His category of 'no property', the case in which everyone can use a given resource but nobody has a right to do so, is an apt description of the way most of us regard the sea.His categories of open and limited access common property can readily be applied to fisheries management practices and the roles of closed (protected) areas. 32Pieraccini 33 expounds on the idea of MPAs as a form of commons and argues that they can be defined in one of two ways, either as spaces for the management of common-pool resources which could be described as enclosures or new commons, or as spaces for communing, by which she means spaces for democratising environmental governance and for the shared production of socioecological commons.A comparison of the chronology of different attempts in the UK to conserve marine biodiversity through the creation of MPAs provides evidence for the extent to which these two approaches reflect reality.

Marine protected areas in the UK
The original domestic legal regime for MPAs in the UK is little more than a seaward extension of the terrestrial SSSI and National Nature Reserve provisions.The designation of European Marine Sites giving effect to obligations in the EU Habitats and Birds Directives came to dominate the UK's MPA map until the introduction of legislation for the creation and management of Marine Conservation Zones.Each of these different types of MPA is discussed below. 34

Marine SSSIs
Because the foreshore and seabed are generally under public ownership, designation and management of marine SSSIs should be more straightforward than for terrestrial SSSIs.Unfortunately, this has not been the case.As originally described in section 23 of the 1949 National Parks, etc. Act, SSSIs were a planning device.The then Nature Conservancy was required to notify the local planning authority of any land in its area that was of special interest by reason of its flora, fauna, or geological or physiographical features. 35As local authority boundaries generally end at low water mark this effectively meant that no SSSIs could be designated below the intertidal zone because there was no local planning authority to notify!In many cases, there was no obvious owner or occupier either and, given the presumed right of public access to the intertidal zone, the notification of potentially damaging operations as required under the Wildlife and Countryside Act, was largely meaningless.The Marine and Coastal Access Act (MCAA) 36 provided for designation even if there was no local planning authority but added a further limitation by defining land as including land above mean low water mark and any land covered by estuarial waters although there are also provisions for the notification of subtidal land as an SSSI and for the enlargement of an SSSI to include subtidal land.

Marine nature reserves
Legislation for the establishment of Marine Nature Reserves (MNRs) was included in the Wildlife and Countryside Act 1981.The Act provided for marine equivalents of National Nature Reserves to be designated for land and water from high water mark out to territorial sea limits. 37MNRs were not popular with the Government and the provisions were only enacted following considerable pressure from the House of Lords.The Government had been reluctant to make provision for MPAs because of concerns over the implications for fisheries and for the freedom of navigation.These concerns are reflected in the provisions for 34.The accounts given relate primarily to English waters.For SSSIs and European marine sites the situation in other parts of the UK is broadly similar but there are big differences in the legislation for and implementation of Marine byelaws for the protection of MNRs. 38Although byelaws could be made prohibiting or regulating entry into, and the taking of any organisms from, an MNR, these did not apply to vessels other than pleasure vessels, and were not allowed to interfere with the functions of a number of bodies including sea fisheries committees.Furthermore, Department of the Environment guidelines made it clear that designations would not be made where there were important and largely irreconcilable differences of opinion.In other words, designation required the voluntary agreement of stakeholders. 39As a result, only three MNRs were designated 40 because objections raised in respect of other proposals lead to these being abandoned. 41he difference between statutory MNRs and voluntary marine reserves, many of which predated the statutory proposals, says a lot about attitudes towards public rights in the sea. 42Although voluntary marine reserves had already been established at Lundy and Skomer, the process of formal designation as a statutory reserve took many years for each of them.Proposals for a statutory reserve at St Abbs and Eyemouth foundered, despite there being a small voluntary reserve.There were two main reasons for the lack of progress with the MNR legislation.First, there has been a presumption that the public had free, open access to the sea.While people were generally amenable to self-imposed restrictions devised by local community groups, there was always a possibility of things changing.In other words, there was no final, enduring commitment.Speculation over the legal restrictions that might be imposed in byelaws for statutory MNRs raised concerns that people would be prevented from doing things in the reserve and that management decisions would be taken out of the hands of the local population.Secondly, there was a backlash against the feared imposition of rules and regulations from national bodies with no local knowledge or interest.

European marine sites
The nature conservation bodies responsible for making and consulting on proposals for statutory MNRs were understandably frustrated and disheartened with the unsatisfactory outcome of their work and interest in the designation waned rapidly 43 once the Habitats Directive came into effect.The Directive required each Member State to contribute to the establishment of a network of protected areas in proportion to the representation within its territory of prescribed habitats and species whose habitats required protection. 44ecause of the inclusion of the word 'territory' it was originally assumed that the Directive applied to the marine environment only out to territorial sea limits.Accordingly, the Conservation (Natural Habitats, etc.) Regulations 1994 45 which implemented the Directive, referred only to marine sites within territorial waters.Greenpeace 46 successfully challenged this interpretation, however, and in Commission v UK 47 , the European Court of Justice held the UK in breach of European law for failing to implement the directive with respect to all projects carried out in waters under UK jurisdiction.While this wider interpretation makes sense in the light of current thinking on the need for marine environmental protection, it does not sit well with the listings of species and habitats for which sites may be designated.Only one out of 95 habitat types refer to the marine environment and only one subset of this covers the open sea.Of the eight habitats listed, five are intertidal or occur in estuaries or shallow sea.
Although the implementing regulations 48 require the boundaries of a European marine site to be defined, protection is primarily achieved through a case by case assessment of proposals for activities that might have a significant impact on the nature conservation interest.Access is not usually prohibited and there is no blanket ban on classes of activities.In this respect, the legal regime has more in common with that for applications for planning permission under town and country planning legislation than with a proscription on established property rights.The Marine Management Organisation (MMO) does have powers 49 to make permanent byelaws for the protection of European marine sites in English waters but, as seen below, this power has not been widely invoked until very recently.
As with the SSSI legislation, application of a protection system designed for the terrestrial environment may not always be appropriate for marine sites.In Akester v Defra 50 it was noted that a proposal to make a Special Nature Conservation Order 51 and issue a stop notice to prevent an activity continuing could not be made because it was intended to control an activity taking place on water and there was no power to do this.The regulations provide for an SNCO to be made 'in respect of any land within a European site specifying operations … of a kind which … would be likely to destroy or damage protected features'.An SNCO is a local land charge.

Marine conservation zones
The Habitats Directive provided protection only for habitats and species of European significance and covered only a few marine habitats and a short list of marine vertebrates.With the failure of the MNR legislation and the inappropriateness of the SSSI for marine sites, this left the majority of marine species and habitats in Britain without any statutory protection.The Marine Conservation Zone (MCZ), introduced in the MCAA was designed to fill this gap.Because this was a completely new sort of protected area designed purely for the marine area of the UK 52 , there were no pre-existing terrestrial models on which to base the legal regime.Nevertheless, the purpose of conservation, as set out in s 117(1), is clearly based on that used for Marine Nature Reserves in the 1981 Act but with the important addition of 'marine habitats or types of marine habitat'.This addition made it clear that it is not enough to provide just for the conservation of individual species or particular features of geological interest but that a wider ecosystem approach is needed to ensure effective conservation.The legislation does not set out the procedure for identifying potential sites for designation but it does require public consultation on proposed sites before designation 53  consequences of designation when considering whether to proceed with a proposed designation 54 .In England, the Government decided that public views should be included from the start and regional stakeholder groups were set up to work with the nature conservation bodies.As Pieraccini 55 notes, the outcome of all this hard work was slow in coming to fruition.MCZs have been designated in three batches over a 7 year period starting in 2013, 14 years after the legislation was passed. 56Proposals for so-called reference areas were dropped on the grounds that there was insufficient scientific evidence to support the proposals.Nevertheless, there are now 91 MCZs including a number in the offshore area beyond the territorial sea.Doubts remain, however, as to their effectiveness in practice.As with European marine sites, the MMO has powers to make byelaws for the protection of MCZs in England 57 but few have been made.Welsh Ministers have similar powers in relation to MCZs in Wales. 58There has been much criticism of the failure of the MMO to use its byelaw-making powers to protect vulnerable sites from damaging activities, notably bottom trawling.The fact that it is the MMO that has these legal powers and not Natural England, the statutory nature conservation agency for England, is indicative of the intention behind the legislation.Although the word 'conservation' is in the title of the designation and is its defined purpose, it is not an overriding purpose.The MMO's primary objective is to make a contribution to sustainable development in pursuit of which it may take any action it considers necessary or expedient for the purpose of furthering any social, economic or environmental purposes. 59It has a range of functions including marine planning and the licensing of marine construction, deposits and dredging.Making marine nature conservation byelaws is just one of its functions and its exercise has to be considered in the light of its sustainable development duties.Section 126 of MCAA requires the MMO (and other public bodies) to notify Natural England if it believes that an act for which authorisation is being sought is or may be a significant risk to the achievement of the nature conservation objective of an MCZ.Furthermore, authorisation must not be granted unless the applicant can demonstrate that there is no such risk or satisfies the MMO that there is no less risky alternative and the public benefit clearly outweighs the risk of public damage.If possibly damaging acts are to be authorised, the applicant must provide for measures of equivalent environmental benefit to the damage that will occur.These conditions are equivalent to those applying in relation to Special Areas of Conservation and Special Protection Areas under the Habitats Directive and have the effect of pitching the nature conservation interest against socio-economic ones.The last condition is effectively meaningless in the marine environment as it is difficult to envisage what sort of measures would be available to an applicant.
There is a further, probably unintentional, problem with the wording of the legal framework for MCZs.Section 117(4) states that the purpose of conserving marine flora or fauna refers, in particular, to species that are rare or threatened whereas s 117(5) states that conserving marine flora or fauna or habitat refers to conserving their biodiversity whether or not any or all of them are rare or threatened.In practice, a wide range of different habitat types has been included in designated sites in accordance with guidance produced by the nature conservation bodies. 60ore worrying for conservation in the long term is the requirement in s 117(2) that the order designating an MCZ must state the protected feature or features.This wording implies that some aspects of a designated site are more valuable than others and the concept of value brings with it notions of property and rights for that value to be held by someone. 61here was an opportunity here to move away from a scheme that focused on need to protect rare and threatened wildlife and instead adopt a broader ecosystem approach that looked to conserve functioning ecosystems in their entirety rather than in a piecemeal, selective way.Section 117(2) also includes a requirement for the order to state the conservation objectives for the site.Laudable though such objectives may be, there are not many options for achieving them other than by controlling access or restricting activities.There are not the opportunities for positive management measures as exist for terrestrial sites.This makes the role of the MMO in granting licences and making byelaws particularly important.

Highly protected marine areas
It is only now that the Government is going forward with the designation of three highly protected marine areas (HMPAs) 'to allow the protection and full recovery of marine ecosystems'.These 'will protect all species and habitats and associated ecosystem processes within the site boundary, including the seabed and water column'. 62hese will be the first-ever permanent closed areas established for marine nature conservation purposes in English waters and, as such, can clearly be defined as exclusion zones in which the State is exercising its rights as owner to exclude others from its property.

The nature of marine protected areas
Legal scholars have wrestled with the concept of property ownership and rights with respect to MPAs.Over the course of the last few hundred years, the British approach to sovereign property rights over the sea and seabed has changed according to political and commercial circumstances.A policy of mare liberum, or open access is great for a sea faring nation seeking to reap the benefits of international voyages whereas mare clausum becomes much more attractive when it is desired to keep out vessels from other nations. 63The same sort of equivocation can be seen in ideas about MPAs.The lengthy debates prior to the enactment of the MNR legislation were largely centred on the problems that might arise both internationally and domestically if so-called rights of access and fishing were in any way interfered with.Fears of such interference were the reason for the failure of this designation.The Habitats Directive has been one of the most heavily litigated pieces of European law but the penalties for failure to implement it correctly provided a strong incentive for the UK government to comply.On land, it clearly does affect the rights of landowners to use their property without any restraint but, in this respect, it is akin to a special form of planning law.It might have been unwelcome but seems to have been regarded as just one more attempt to control what a citizen can do with their land rather than the imposition of a takeover of land for conservation.For European marine sites, however, there was no background of planning law with its accompanying need for environmental assessments and it is not surprising that concerns were expressed, notably by the 61.The term 'features' raises practical questions as well: can the biodiversity interest within a given area be categorised into defined features?Is there sufficient scientific evidence to specify the full range of features?Can we be sure that the features in an MCZ will not change with time?62. https://www.gov.uk/government/publications/highly-protected-marine-areas/highly-protected-marine-areas-hpmas.63.See Barnes R Property Rights and Natural Resources Hart Publishing, 2009 pp 166-177 for a discussion of the Mare Clausum -Mare Liberum debate.
fishing industry.One of the biggest challenges for regulating European marine sites is the practical difficulty of determining whether a proposed project is likely to have an adverse effect on a site.By the time that the latest tranche of MCZs obtained formal designation, there had been a dramatic change in political understanding and public awareness of the need for more marine environmental protection.Yet none of these sites had any protection beyond that outlined above.The original proposals had included a series of 'reference sites' which would be areas closed to all activities against which the success of the more balanced approach applied in the other designated sites could be assessed.None was taken forward.In Wales, where much of the sea was already designated as European marine sites, there were proposals to use the MCZ legislation to create a series of highly protected marine areas where most or all extractive activities would be prohibited but these plans came to nothing. 64e effectiveness of marine protected areas It is estimated that some 38 per cent of UK seas are within an MPA. 65In theory, this should augur well for the government's 30by30 commitments 66 but in practice, it does not.Only a handful of sites come within the IUCN's category of strictly protected areas 67 ; the rest mainly full into the category of habitat or species management areas given that their main purpose is defined to be marine conservation although in practice they can seem more like protected areas for the sustainable use of natural resources.The legislation for European Marine Sites and for MCZs makes it clear that nature conservation must come first.They are not exclusion areas but access is only open to anyone who is not likely to be causing harm to the conservation interest with some exceptions.It is the way that these exceptions have been treated that is of concern.The whole point of the controlling regulations is to ensure that conservation interests should outweigh socio-economic ones in the balancing act for sustainable development.Instead, there is a tendency for authorising authorities to try to find a way to accommodate all interests so that damaging activities can be allowed subject to conditions which are deemed sufficient to meet the conservation needs. 68Concerns have also been expressed at the apparent reluctance of the MMO to bring an end to damaging activities in designated areas by making byelaws.In 2022 Greenpeace dropped large granite boulders in the Brighton Offshore MCZ in order to obstruct the nets of bottom trawlers.The MMO prosecuted Greenpeace for depositing material on the seabed without a licence.Greenpeace subsequently dropped the case possibly in the light of the comments of the judge in his ruling on jurisdiction 69 in which he questioned whether the prosecution was in the public interest.He felt that the licensing regime 'could be better used as a source of protection against those who actively seek to harm the marine environment'.He commented that the 'parties in this case should be allies, not antagonists' and thought that it 'touches on the absurd that this litigation is happening at all'.
At first sight, the creation of a new category of HMPAs seems like a step in the right direction but it is worth looking at why two of the five candidate sites that were subject to consultation were rejected. 70indisfarne was rejected due to evidence of the local community's dependency on fishing and other socioeconomic factors including reduced income from tourism.Inner Silver Pit South will not be designated 'as the relatively high costs to fishermen would not be offset by the potential benefits from its designation as a HPMA.The net social value (comparing benefits to costs) was the lowest across all sites'.So, of just five candidate sites, two have been rejected purely on socio-economic grounds.The HPMA has no legal status.Each of the three pilot sites overlaps with or lies within an existing MCZ and the management regime will be governed by the same legislation.It is anticipated that extractive, destructive and depositional activities will be prohibited within each site although whether this will be by means of byelaws or through case-by-case decisions on licence applications is not specified in the policy statement.As the selection process for candidate sites excluded locations with existing and/or consented physical structures and activities such as dredging and dumping, it is doubtful whether the new designations will actually be adding any extra protection in practice.
In its review of government's progress towards meeting its 30 × 30 commitments, Wildlife and Countryside Link 71 claim that although 40% of English waters are designated as MPAs only a maximum of 8% are effectively protected because so few sites have management measures and monitoring in place.While welcoming the proposed HPMAs, the report notes that, even if all five were designated, this would only cover 0.53% of English waters and that MMO byelaws banning bottom trawling in four sites apply to just 5.8% of English seas. 72n conclusion, therefore, it seems that, while the need for effective MPAs is now fully acknowledged, there is still political reluctance to allow conservation interests to outweigh socio-economic ones.If the conservation of marine biodiversity is to be properly carried out, HMPAs need to be the default designation, with no presumption of access to anyone.The order for each HMPA would identify which activities might be allowable and these could then be considered on a case by case basis.Without a move from a policy of anything allowed unless prohibited to everything prohibited unless permitted it is unlikely that MPAs will ever be truly effective mechanisms for the conservation of marine biodiversity. 73

Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
6. Attorney General v Emerson [1891] AC 649. 7. Countryside & Rights of Way Act 2000 ss 3 and 3A as amended by the Marine and Coastal Access Act 2009 includes powers to extend the public right to roam to coastal land including the foreshore.8. Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976 SC 161.
18. Ibid.Article 77(1).19.Ibid.Article 77(4); sedentary species are defined as 'organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil'.20.Crown Estate Act 1961 s 1(3).21.Scottish Crown Estate Act 2019 s 7. 22. UNCLOS Article 117.23.The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA).New York, 4 August 1995.Available at:https://documents-dds-ny.un.org/doc/UNDOC/GEN/ Conservation Zones under the different administrations.35.See above, n. 1. 36.Marine and Coastal Access Act 2009 s. 148 and schedule 13. 37. Wildlife and Countryside Act 1981 s. 36.
and gives government the power to have regard to any economic or social 47.Commission v UK C-6/04 [2005] ECR I-9017.48.Conservation of Habitats and Species Regulations 2017 SI 2017/1012 and Conservation of Offshore Marine Habitats and Species Regulations SI 2017/1013.49.Conservation of Habitats and Species Regulations 2017 SI 2017/1012, Regulation 40.50.R (Akester) v Defra [2010] EWHC 232 Admin.51.See n. 49, above, Regulation 27. 52.Under s 116 of the MCAA, an MCZ may be designated in the UK's territorial sea, its EEZ and its continental shelf with the exception of the Scottish and Northern Ireland inshore regions.53.Ibid.s. 119.