FIFE COUNCIL
Environment and Development
Committee
2nd February, 2006
Agenda Item No.
PROPOSAL FOR SHIP TO SHIP TRANSFER OF OIL IN THE FIRTH OF FORTH
1.0
Introduction
1.1
The previous report presented to Committee in March, 2005 (2005.E.D.C.163
Para. 310 refers) detailed Fife Council’s initial response to the proposal by
Melbourne Marine Services to conduct ship to ship (STS) transfer of crude oil and
other hydrocarbons in the Firth of Forth and put forward how the Council’s
detailed response to the proposal might be formulated. On consideration of the
report the Committee expressed its total opposition to the proposals.
1.2
Following that report and discussions which took place between the Head of
Transportation, Officers from Law and Administration Service and the Chair and
Opposition Spokesperson, it was agreed that, amongst other measures to be
taken to express the Council’s opposition, the Opinion of Counsel should be
obtained to establish the legality of the proposals being taken forward, particularly
in view of a recent European Court decision.
1.3
This report seeks to summarise the implications of the Opinion which has now
been received, and which is annexed. Copies of the original Memorial and
supporting papers are available in the Members’ Lounge.
1.4
Members should note that the obtaining of legal opinion is part of a broader
approach on marine environmental matters. The Council have been consulted by
DEFRA on the European Commission’s Marine Strategy Package. This was the
subject of a report to External Affairs Sub-Committee on 25th January. It is
recommended that this Committee nominate a senior official to co-ordinate the
Council’s response on the Marine Strategy Package, and the draft Directive
attached to it. The report to the External Affairs Sub-Committee also confirmed
that, at the General Assembly of the Conference of Peripheral Maritime Regions
in September, 2005, Fife Council’s resolution calling for a more co-ordinated
approach to the issue at the North Sea Regional level was approved.
2.0/
-2-
2.0
Opinion of Counsel
2.1
The Opinion, by leading environmental advocate R. Douglas Armstrong QC,
confirms that both the Marine and Coastguard Agency, in deciding whether or
not to approve the amendments to the Clearwater Forth Oilspill Contingency Plan
that would allow STS to go ahead, and the Forth Ports Authority, for their
decision making purposes, face legal difficulties.
2.2
Counsel advises that, in coming to a decision as to whether STS should go
ahead in the Firth of Forth, both the MCA and Forth Ports require to have regard
not just to a narrow set of provisions under 1998 Regulations and a section of the
Harbours Act 1964 respectively. Both the MCA and Forth Ports will also have to
have regard to the 1994 Regulations which sought to import into UK law EU
Directive 92/43/EEC of 21st May, 1992 on the Conservation of the Natural
Habitats and of Wild Fauna and Flora (“the Habitats Directive”).
2.3
The fact that the European Commission was successful in its recent court action
against the United Kingdom for failing to transpose the Habitats Directive
correctly into UK Law makes it all the more vital that public authorities, in
approving plans or projects of the nature of STS, must ensure that the terms of
the Habitats Directive are complied with. This says (Article 6(3)):
“Any plan or project not directly connected with or necessary to the management
of the [protected site, i.e. in this case, the Firth of Forth] but likely to have a
significant effect thereon… shall be subject to appropriate assessment of its
implications for the site in view of the site’s conservation objectives. In the light of
the conclusions of the assessment… the competent national authorities shall
agree to the plan or project only after having ascertained that it will not adversely
affect the integrity of the site concerned and, if appropriate, after having obtained
the opinion of the general public.”
3.0
Discussion
3.1
Mr. Armstrong’s opinion confirms that both the MCA and the Forth Ports Authority
face a very high legal test of compliance with the Habitats Directive if they decide
to go ahead with STS in the Firth of Forth. It is difficult to see how either authority
could justify agreeing to a planned operation the consequences of which in the
event of an oil spill, would be disastrous for the marine environment in the Firth of
Forth. There is further European case law that supports this view.
3.2
Mr. Armstrong’s Opinion also makes it clear that, in the event of a decision being
taken by the MCA which conflicts with the Habitats Directive, then such a
decision would be challengeable in court. Counsel suggests that Forth Ports
Authority should be approached to clarify under what legislative provision they
are likely to take a decision on this matter.
3.3/
-33.3
It may also be that, should Forth Ports Authority proceed without satisfying the
legal requirements set out in this report, issues of liability for any subsequent oil
spill would potentially include liability on their part.
4.0
Conclusions and Recommendations
4.1
Mr. Armstrong’s Opinion is useful in outlining the difficulties that the regulatory
authorities face in coming to a decision which would be lawful, particularly given
the recent European Case Law. Clearly until a decision is taken it is not known
whether it will be legally challengeable. However, it would seem to be
reasonable to advise both MCA and Forth Ports of Mr. Armstrong’s findings and
to ask for their comments.
4.2
It is accordingly recommended that: Members note the contents of the report and attached Opinion;
 Agree that the Head of Law and Administration in consultation with the
Head of Transportation, write to the Marine and Coastguard Agency and
the Forth Ports Authority with a copy of the Memorial and Opinion, asking
them to confirm their position in the light of the apparent legal difficulties
they face in relation to STS in the Firth of Forth.
 Agree that the Strategic Manager (Environment and Development) coordinates a response on all marine environmental matters, including the
Marine Strategy Package referred to at 1.4.
H.B. Tait,
Head of Law and Administration.
Dr. Bob McLellan,
Head of Transportation Services.
Author:
Andrew Ferguson,
Solicitor,
Team Leader (Administration),
Fife Council,
Fife House,
North Street,
GLENROTHES.
KY7 5LT
Contact: (01592) 416316
andrew.ferguson@fife.gov.uk
16th January, 2006.
FISH/ENVIRONMENT&DEVELOPMENTCOMMITTEE/020206/REPORTS/PROPOSALFORSHIPTOSHIPTRANSFEROFOILINTHEFIRTHOFFORTH/LL