Step 1 – Defining spatial claim & applying precautionary principle

Calculating spatial claim

Preliminary discussions of an informal nature with the competent authority may be regarded as the start of a process geared towards optimum assimilation, involving other interested parties too, if need be. The fundamental principle for the competent authority is to encourage and enable new activities at sea within the set frameworks by adopting a development-oriented approach in which designated uses are harmonised with one another in a sustainable, integrated manner.

These preliminary discussions put the initiator in a position to take into consideration all spatial interests in the planning area in advance. It is anticipated that this will result in a lower incidence of legal proceedings once formal permit applications have been submitted. Furthermore, the preliminary discussions will also enable the initiator to acquaint themselves with the formal test criteria and procedure for permit issuance at an early stage.

For each initiative there is a single service point where the competent authority, in conjunction with the initiator, looks at whether or not it will be possible to offer the space within the bounds of the North Sea policy.

The formal process starts once the formal permit application has been submitted. The formal test criteria for permit issuance are set out below.

Ecosystem approach and precautionary principle

For sustainable development and sustainable use of the North Sea, the ecosystem approach is being applied. In other words: not only the impact on individual species counts, but also the effects on the entire cohesion of communities and their habitats. Existing laws and regulations provide for the ecosystem approach by means of such things as a test of the effects on nature and the environment and application of the precautionary principle. This principle has had a place in international and national policy for years now (OSPAR, NWP, MSFD and Natura 2000). It is a crucial point of departure when it comes to developing and planning activities at sea. The principle entails a user having to take preventive measures if there are reasonable grounds for concern that the activity could cause potential irreparable damage to the marine environment, human health and/or other lawful use. Adequate proof of a causative relationship between activity and consequences is required.

The preventive measures must preclude undesirable, long-term, irreversible effects being caused by activities, or minimise such effects where they cannot be prevented. Examples of preventive measures are: temporal zoning, using clean technologies, introducing checking systems and managing flows of substances/materials/waste.

Effects of existing and new activities

The way in which the precautionary principle is applied depends on whether the activity relates to an existing or new designated use. After all, policy and regulations are already in force for existing use, whereas there are more questions and uncertainties surrounding new use.

If an environmental impact statement is mandatory for new activities, then the environmental impact statement will provide sufficient insight into the effects to enable the activities to be tested against the precautionary principle. In the case of activities for which an environ¬mental impact statement is not mandatory, the competent authority will apply the precautionary principle on the basis of existing policy, existing regulations and common practice. If there are no new insights regarding ecological effects or effects on human health or on other lawful use, then this fact will be sufficient for the purposes of the precautionary principle. If new insights do provide grounds for doing so, the competent authority will ask the permit applicant to supply further information on the possible effects and, if need be, to take preventive measures.
In addition to the basic information for the spatial claim, the information supplied by the applicant must contain the following elements:

• a description of the natural values in the area (proceeding from the ecosystem approach) and the siting of the activity;
• a description of the effects that the activity could have by itself and in combination with other activities;
• an assessment of the potential effects based on the best available knowledge.

If sufficient knowledge of the consequences of an activity is lacking, then this should not constitute grounds to permit that activity to proceed. In such cases the permit authority could decide:

• not to permit the activity;
• to permit the activity, but on the proviso that the initiator minimises and/or compensates for the effects;
• to have further research (e.g. monitoring) carried out and to issue the permit for a set term (duration of the research);
• to impose other restrictions, such as (for example) the ‘hand on the tap’ principle, in which the activity is permitted until a certain norm is exceeded.

Measures to limit effects must be established at the time of the decision being made on permit issuance.
If, when assessing a permit application (including environmental impact statement if relevant), sufficient assurance is obtained that there is no risk of significant adverse effects, the remainder of the assessment frame¬work will not have to be completed, with the exception of the test of choice of location (step 2).