Legal Framework and Emerging Policy for Development in the UK Marine Environment: End of year update

The UK’s marine environment is at the intersection of ambitious biodiversity recovery targets and a rapid transition to renewable energy. The past year has seen the implementation of a number of developments in legal frameworks and policy as well as various high-profile consultations. This article explores key policies, legal mechanisms, and emerging trends, focusing on why these have important implications for sustainable marine management.

This article analyses:

1. Current UK policy and targets for the marine environment;
2. Targets and drivers for offshore renewable energy development;
3. The increasing need for compensation for developments subject to Habitats Regulations Assessments;
4. The Energy Act 2023 and the Offshore Wind Environmental Improvement Package; and
5. The proposed Marine Net Gain principles in England.  

Current UK policy and targets for the marine environment

In England, the Environment Act 2021 placed legal obligations on the government to publish a suite of environmental targets. The final targets published by DEFRA in December 2022 introduced a key milestone for the marine environment: ensuring that 70% of designated features in Marine Protected Areas (MPAs) reach “favourable condition” by 2042, with the remainder in a “recovering condition.” 

These targets came into law through the Environmental Targets (Marine Protected Areas) Regulations 2023.

The Environmental Improvement Plan (EIP), published in January 2023, builds on these targets in England. Its apex goal is halting biodiversity loss by 2030, transitioning to restoration by 2042. Interim targets include achieving favourable conditions for 48% of designated MPA features by 2028. The plan also introduces Highly Protected Marine Areas (HPMAs) to allow ecosystems to fully recover. In July 2023, the first three HPMAs were designated – Allonby Bay, North-East of Farnes Deep and Dolphin Head. 

As environmental law and policy in the UK is devolved, Scotland has its own approach, reflecting its distinct post-Brexit legal landscape. In September 2024, the Scottish Government outlined their legislative plans for the 2024-25 parliamentary year, including the introduction of a Natural Environment Bill.  The Bill has not yet been published, but it is understood that its central focus will be the recovery and regeneration of biodiversity by 2030 and 2045 respectively. In order to achieve these goals, the Bill is anticipated to set binding statutory targets, including for the marine environment. 

Targets for offshore renewable energy development

In addition to marine biodiversity targets, the UK also has targets in respect of renewable energy.

The UK Government’s Net Zero Strategy (covering the whole UK) commits to reaching net zero greenhouse gas emissions by 2050 with a central ambition of powering the UK entirely with “clean electricity” by 2035. The British Energy Security Strategy, which applies to England, Scotland and Wales, identifies that offshore wind energy will play a pivotal role in achieving this, setting ambitious targets to generate up to 50GW of energy from offshore wind by 2030, including 5GW from innovative floating wind installations.

Summary - the UK has very ambitious targets for both net zero, which will rely on the building of infrastructure with significant capacity in the offshore environment over the next five years, as well as nature recovery in the marine environment.  The following current and proposed legal frameworks are grappling with the challenging task of trying to achieve both. 

Legal frameworks guiding marine development

The EU’s Habitats Directive remains the cornerstone of UK conservation law post-Brexit. The Habitats Regulations ensure that projects impacting Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) undergo rigorous Habitat Regulations Assessments / Appraisals (HRA). Derogations — allowing development despite adverse impacts on the integrity of protected sites — require the securing of compensatory measures to ensure the overall coherence of the “National Site Network” is protected.

The Marine and Coastal Access Act 2009 and Marine (Scotland) Act 2010 establish additional MPA frameworks, including Marine Conservation Zones (MCZs) in England and Wales, and Nature Conservation MPAs and Demonstration and Research MPAs in Scotland. These frameworks involve distinct processes for consenting activities and delivering compensatory measures.

In recent years, as developments in the marine environment have increased causing impacts on marine wildlife, the need to deliver innovative compensatory measures has grown. Recent examples of this are the compensation packages required for the Hornsea 3, Hornsea 4 and Sheringham Shoal and Dudgeon Offshore Wind Farm extensions. These developments required creative solutions such as Looming Eye Buoys to reduce seabird bycatch, habitat creation for Sandwich terns, and artificial nesting structures for kittiwakes.

In recognition of the increased need for compensatory measures, together with the complexities of securing such measures, in England in February 2024, Defra launched its Consultation on policies to inform updated guidance for Marine Protected Area (MPA) assessments. This consultation, and the subsequent updated guidance, which the government is intending to publish in 2025, attempts to cover each of the above legal frameworks and their respective tests. 

Summary – As evidenced by the draft guidance in England, the increasing need to deliver compensation for individual projects in the marine environment is incredibly difficult, requiring innovative and novel solutions.  To ease the burden on developers and ensure more coherent and scaled up compensation, strategic solutions are being considered. The intention is that doing this will better manage the impacts of offshore wind so that high levels of environmental protection can be maintained whilst also helping to ensure that the ambitious targets of  50GW of offshore wind by 2030 are reached.

The Energy Act 2023 aims to streamline compensation delivery through the Offshore Wind Environmental Improvement Package (OWEIP) and a proposed Marine Recovery Fund. These mechanisms are intended to facilitate strategic compensatory measures, enabling collaborative and adaptive management to address cumulative impacts. Secondary legislation, none of which is yet to be drafted, will determine the establishment, operation and management of the Marine Recovery Fund. 

Marine net gain- an emerging concept

In June 2022, Defra published its consultation on the principles of Marine Net Gain (MNG ) which set out the aims for net gain policy for the marine environment and development within it.  The main part of the consultation set out the proposed core principles of MNG and sought views on whether to mandate net gain for marine developments, the scope of MNG and how net gain could be applied. On 9 December 2023, the Government published its response to the MNG consultation. A year on, however we are still no nearer to seeing legislation brought forward.

While inspired by terrestrial Biodiversity Net Gain (BNG) policies now in force in England, MNG will have to account for the dynamic nature of marine environments and highly mobile species. Proposed as mandatory for marine developments, MNG aligns with the mitigation hierarchy while supporting innovative restoration techniques and strategic interventions.

Similar policies may emerge in Scotland, further integrating net gain principles across UK waters.

Summary - What next?

The UK’s marine environment is undergoing transformative change, driven by ambitious targets for biodiversity and renewable energy. In 2025, the UK is expected to advance significantly in marine biodiversity recovery and renewable energy development. Key developments include updated guidance on compensation for Marine Protected Areas (MPAs), the establishment of the Marine Recovery Fund, and the announcement of the next steps in Marine Net Gain (MNG) policy. 

Freeths will continue to closely monitor the evolving legal and policy landscape in the marine environment.