Burry Inlet management plan: Cockle Fishery Order 1965

Overview

This Management Plan relates to the Burry Inlet Cockle Fishery (the Fishery).

With effect from 1 April 2013, Natural Resources Wales (NRW) assumed responsibility for management of the Fishery pursuant to the Burry Inlet Cockle Fishery Order 1965 (the Order). The Order confers upon NRW powers to regulate the Fishery until 15 June 2025. This Management Plan identifies NRW’s aims and objective in its management of the Fishery and sets down detailed arrangements for its management of the Fishery for cockles (Cerastoderma edule).

This Management Plan will be subject to an overall review at intervals of not greater than 5 years.

Management aims and objectives

NRW’s overall aim in its management of the Fishery is to develop a thriving cockle fishery in the Burry Inlet which supports, protects and enhances the needs of the community and the environment upon which it depends. The Environment (Wales) Act 2016 includes a requirement for NRW to embed the principles of sustainable management of natural resources throughout the way we work. Through applying these principles we can maximise our contribution to the well-being goals and pursue the sustainable management of natural resources.

In order to achieve this aim, NRW has identified and will pursue, through its management of the Fishery, the following 3 objectives:

  1. to deliver and maintain a sustainable Fishery which can provide regular income to licensees.  
  2. to avoid adverse effects on the European designated site and local residents.
  3. to improve the management, monitoring, regulation and enforcement  within the Fishery.

Geographical description of the fishery

The Burry Inlet is a large estuarine complex located in South Wales between the north coast of the Gower Peninsula and the south-east coast of Carmarthenshire. The area geographical scope of the Fishery is illustrated on the Definitive Map which accompanied the Order. It is also defined within article 2(1) of the Order as follows:

  • On the west: that part of a line drawn from the seaward end of Pembrey Pier to the most northerly point of Whiteford Point, which lies between High Water Mark of Ordinary Tides on the northern and southern shores of the estuary respectively
  • On the east: the seaward side of that part of the Loughor Railway Bridge which is situated between High Water Mark of Ordinary Tides on the northwestern and south-eastern shores respectively of the River Loughor and a line drawn from the south-eastern end of that part of the railway bridge herein before described, due south until it again meets High Water Mark of Ordinary Tides.
  • On the north and south: High Water Mark of Ordinary Tides on the northern and southern shores of the estuary respectively between the western and eastern boundaries herein before described as the same is shown on the definitive map sealed by the minister for the purpose of this order and thereon coloured pink.

The total area of the Fishery, below mean high water springs (MHWS) on the Definitive Map is 4,247 hectares.

Background

The last review of the Management Plan was in September 2013. This version of the Management Plan  has been revised to take account of the standardising, as far as practical, of the management practices of the two Welsh Regulated Cockle Fisheries (Burry Inlet Cockle Fishery and Dee Cockle Fishery) and to take account of new plans and strategies including:

  • Wellbeing of Future Generations (Wales) Act 2015”, which requires public bodies to think about the long term impacts of their decisions and work better with people communities and each other to prevent persistent problems such as health inequality and climate change
  • Welsh Marine Evidence Strategy 2019 – 2025”, is a collaborative agenda for marine research Monitoring and Analysis
  • Welsh National Marine Plan 2019”, which forms policy for the next 20 years for sustainable use of our seas
  • Environment (Wales) Act 2016.

The Burry Inlet is an internationally important over-wintering site for wildfowl and wading birds and of European importance for its estuarine, mud and sand-flat and salt-marsh habitats and communities. It is designated as a Special Protection Area (SPA) under the EC Birds Directive, it is a component part of a Special Area of Conservation (SAC) designated under the EC Habitats Directive and a Ramsar Site under the International Convention on Wetlands. The Inlet also encompasses Sites of Special Scientific Interest (SSSI) designated under the Wildlife and Countryside Act 1981: Loughor Estuary SSSI, Pembrey Coast SSSI, Llandimore Marsh SSSI - and part of the Whiteford Burrows National Nature Reserve (NNR).

The Burry Inlet has supported a commercial cockle fishery for well over a century. In 1965, the Order was made by the Minister of Agriculture, Fisheries and Food, granting to the South Wales Sea Fisheries Committee (SWSFC) a right to regulate the Fishery for cockles.

Regulating Orders (which now operate pursuant to the Sea Fisheries (Shellfish) Act 1967) grant powers to a responsible organisation enabling them to manage and regulate a fishery.

The Order relating to the Burry Inlet Fishery generally prohibits unlicensed cockle fishing and allows for regulations to be imposed (with the consent of the Welsh Ministers) which prohibit or regulate cockle fishing. Regulating Orders also encourage long term investment in the Fishery. Over the years, the number of licences issued to in respect of the Fishery has varied, with the highest number being 67 and the lowest number being 33. In the 2019-20 season 36 licences are available.  This number has been relatively consistent in recent years but at NRW’s discretion could be subject to flexibility to reflect an adaptive management approach to the Fishery.

Stock assessment surveys and total allowable catch (TAC)

Stock assessment surveys will normally be carried out twice a year in the Spring and Autumn using a standard methodology (Moore 2011). Surveys will estimate the cockle biomass of each year class from each bed within the Fishery.

A Total Allowable Catch (TAC) is established each year for the fishery based on the results of the surveys and the food requirements of the overwintering birds of the Burry SPA. Individual bird based models such as the one developed by the Centre for Ecology and Hydrology (CEH) have been universally acknowledged as the most appropriate method to set a TAC. The food requirements of the birds is calculated using the most up to date Bird Food Model. 

Once the survey is complete the results are assessed, and the tonnage of cockle is calculated to leave enough food for the requirements of the overwintering birds and for a TAC for the licencees. The catch returns from the licencees are monitored to see how much cockle is being removed each month in relation to the set TAC. This enables the TAC or daily quota to be amended if necessary to ensure enough food is left for the birds, the fishery is sustainable over the long term and it provides a living for the licencees.

Following the principles of Sustainable Management of Natural Resources, we will adaptively manage the Fishery, assessing the need to respond to environmental events such as rouching (see Appendix 1) and changing size demographics, including the potential to change size limits for gathering as appropriate and if the fishery can sustain it.

Legislative context

NRW may issue licences under the Order (Sea Fisheries (Shellfish) Act 1967) in such numbers and to such persons, and operative for such periods, and may authorise the dredging, fishing for or taking of shellfish at such times, in such manner and to such extent as it may determine. This includes the setting of licence conditions, daily and annual quotas and size limits, and the determination of fishing times and areas and methods.

Under the provisions of the Sea Fisheries (Shellfish) Act 1967 NRW may, with the consent of the appropriate Minister:

  • revise the tolls leviable under the Order
  • make or change regulations made under the Order
  • adopt or change any policy as to whom, and under what conditions, they propose to issue licences.

Article 3 of the Order states that:

  • No person shall within the limits of the fishery hereinbefore described dredge, fish for or take cockles except under the authority of and in accordance with the conditions contained in a licence issued by the Committee in that behalf.
  • A licence shall be available only for the period specified therein and for use by the person named therein.
  • Licences shall be in a form approved by the Minister.
  • Any person dredging, fishing or taking cockles under the authority of a licence issued under this Order shall when required by any officer appointed by the Committee and after production by such officer of written evidence of his authority if so require, produce such licence and shall desist from dredging, fishing or taking cockles until the same is produced.
  • Nothing contained in this Order shall operate to prohibit the taking by any persons who is not a holder of a licence under this Article of cockles in that part of the area to which this Order applies to the east of a line drawn from High Water mark of Ordinary Tides on the north side of the Burry Inlet to the east of a line from High Water mark of Ordinary Tides to the eastern bank of Llanrhidian Pill in the south, true north until it meets from High Water mark of Ordinary Tides on the north side of the Burry Inlet provided that such cockles are not thereafter sold or processed for sale.

What this means is that no person shall take cockles from within the regulated Fishery, except under the authority of a licence issued by NRW (or by prior written permission from NRW) and in accordance with any restrictions and regulations made under Section 5 of the Order 1965. The boundary of the Order is shown on the plan attached to these notes, which is split into six areas for management purposes. The authority of a licence shall not be transferable and shall apply only to the person named upon it.

Personal gathering

The pink area of the map is regulated by the Burry Inlet Cockle Fishery Order 1965. A licence is required to gather cockles in this area, with the exception of the exemption below.

Upstream (to the east) of a straight line drawn between Llanrhidian Pill in the South and Llanelli North Dock in the North personal gathering is permitted but regulated by the byelaws of the former South Wales Sea Fisheries Committee. Under Byelaw 17, individuals may gather up to 8kg per day in this area for personal consumption without a licence. These cockles cannot be gathered for the purpose of selling. Signs are displayed in the estuary.

Restrictions and regulations on harvesting

The following restrictions and regulations apply to the Fishery: 

  1. Each year, prior to the issuing of new licences, NRW will consider the allowance of fishing for a Total Allowable Catch (TAC) within the Fishery. NRW will consider the most appropriate Minimum Landing Size (MLS), and may consider a Maximum Landing Size (MaxLS) for the season based on the most appropriate survey data and modelling predictions. MLS and MaxLS will be managed using licence conditions which NRW may alter throughout the season should NRW deem it necessary. Licence holders will be notified of any changes in writing.
  2. Each licensee will be allocated an individual daily or annual quota based on the total TAC.
  3. Using an evidence based approach, individual cockle beds may be opened and closed depending upon cockle condition, levels of harvesting and survey results at the discretion of NRW. This may also include a closed season should NRW deem it necessary to protect the fishery. No person shall, without the specific prior written authority of NRW, fish for, remove, take or disturb any cockles from any part thereof, which has been closed.
  4. No person shall fish for, take or otherwise remove cockles from within any part of the area regulated by the Burry Inlet Cockle Fishery Order 1965 on a Sunday except with the prior written authority of NRW.
  5. No person shall fish for or take cockles from any part of the area regulated by the Burry Inlet Cockle Fishery Order 1965 between half an hour after sunset on any day and half an hour before sunrise the following day.
  6. No person shall bring ashore, fish for, or take or remove cockles (Cerastoderma edule) from any part of the area regulated by the Burry Inlet Cockle Fishery Order 1965, otherwise than on his or her own behalf and on the day on which they were gathered.
  7. A cockle shall be deemed to be removed from the fishery as soon as it is placed in any container (including bags, sacks and other similar receptacles), trailer, vehicle or vessel.
  8. Any person fishing for scientific purposes, or for stocking or breeding purposes, under the written authority of NRW shall not be subject to these restrictions and regulations.
  9. All cockles will be hand gathered by rake and riddle approved by NRW only, unless by prior written authority of NRW.
  10. No cockle bags or other equipment or litter are to be left on the beds following fishing.
  11. No person shall engage in any activity which disturbs or damages the Fishery without the prior written consent of NRW.

Licence eligibility criteria

The eligibility criteria require that, at the time of application for a licence, or on the date of issue of a licence, as the case may be each licensee.

  1. Is aged 16 years or older
  2. accepts that as a condition of making a licence application and of holding a licence, and in accordance with the General Data Protection Regulation and Data Protection Act 2018, that certain personal data supplied to NRW, but at a minimum, the individual’s name, address and date of application for and date of receipt of a licence, and whether they are on the waiting list or a licencee, will be made publicly available by NRW
  3. is registered to pay, and has paid Class 2 National Insurance Contributions or equivalent commensurate with being a self-employed fisherman at the time of application for a licence (note that new applicants / licensees will have one month in which to register); and
  4. has paid in full all outstanding fees for all previous licence periods except where authorisation not to pay some or all fees has been granted in circumstances where the licensee is unable to fish for reasons beyond control (e.g. sickness);
  5. has submitted the application form and paid in full by the 1st of April. Cockle licences will ONLY be issued once NRW have received both application form and payment. Failure to do so will result in the individual not being able to fish for cockles.

Cockle fishing licences

Dynamic and reactive management of a commercial fishery in the marine environment which will by nature experience conditions that are difficult to predict, is best achieved through the imposition of licence conditions.

NRW will use licence conditions to manage the Fishery effectively and efficiently.

Issuing licences

Under the Order, a licence is required to fish for cockles within the Fishery. It is an offence to fish for cockles without a licence. NRW enjoys powers to issue licences under section 4(4) of the Sea Fisheries Shellfish Act 1967. No individual may hold more than one licence for the Fishery.

It is the aim of this Management Plan to allow a minimum of 36 licensees to participate in the Fishery. In addition, at times when NRW considers that the Fishery could sustain it, Short Term Non Renewable Licences (STNRL) may be issued at NRW’s discretion.

Licences will be issued within 10 working days of NRW receiving all aspects required to validate an application.

NRW require that each licencee has the most up to date training and safety certificates prior to accessing the fishery and/or boat use on the fishery. (see Appendix 2)

Protected licences

NRW aim to issue a minimum of 36 protected licences. They will be invited to renew their licence each year provided they continue to meet the licence eligibility criteria and are compliant with their licence conditions.

Each year, NRW will invite all protected licensees to renew their licence by 1st April and such licences shall be renewed provided each protected licencee continues to meet the licence eligibility criteria and are compliant with the licence conditions. Where an individual either decides not to renew their licence or does not meet the licence eligibility criteria and is not offered a licence, they will lose their protected fishing licence. 

Probationary licences

If the licence offer is accepted, the successful applicant(s) will be required to serve the first three seasons as a probationary period, with the potential for removal of licence if the required standards are not met. (The minimum standard would be adherence to the Licence Conditions. Should the probationary licensee(s) be convicted of an offence on the Fishery, the licence(s) would be cancelled).

Except in exceptional circumstances, all probationary licensees must also fish a minimum of 25% of available tides in each of the probationary seasons.

A probationary  licence will be classed as a short-term renewable licence until the third renewal, where the licence holder will then become protected.

Short-term non-renewable licences

In addition to the renewal of protected licences, each year, NRW will determine whether it may issue any additional short-term non-renewable licences. This decision will be taken following an appropriate stock assessment survey taking into consideration over-winter and post spawning losses as well as the conservation objectives of the European Marine Sites. If, having regard to scientific advice on the desirability of limiting the level of exploitation, and in consideration of other factors, NRW is satisfied that the cockle stocks are likely to support additional fishing, it will determine to issue additional licences (referred to as “short-term non-renewable licences”) in respect of the Fishery. 

A short-term non-renewable licence is not guaranteed for renewal and does not carry for 36 non-consecutive months towards a protected licence.

The number of short-term non-renewable licences to be issued can be determined by NRW at anytime during the year.

Short-term non-renewable licences will be offered to named persons on the Licence Waiting List in the order they appear on that List, provided they continue to meet the licence eligibility criteria.

When a short-term non-renewable licence becomes available and is offered to named persons on the Waiting List, the individual will have 28 days to accept the offer of a licence, and must submit the completed application form and fee. Failing to meet the criteria, the deadline for application, or payment of fee will result in the offer will be withdrawn and passed on to the next person on the Waiting List.

Where an individual either declines the offer of a short-term non-renewable licence or does not meet the licence eligibility criteria, the offer will be provided to the next person on the Waiting List. The individual who declines a temporary licence retains their position on the Waiting List.

Licence waiting list

The Waiting List was compiled by the SWSFC prior to the Fishery being regulated by NRW. There are currently 55 people on the list as of 28/02/2021, all of whom have been assessed against the licence eligibility criteria. The list is maintained by NRW requiring individuals to renew their position annually by sending a written confirmation to NRW by 28th February each year.

NRW will endeavour to reduce the waiting list by closing the current List. This List has been closed to new applicants since March 2015 and will re-open only under NRW’s discretion.

No person may apply to be on the Waiting List until they have reached 16 years of age.

Applicants themselves must renew their interest on their own accord and in writing each year. Correspondence must arrive at the address below by 28 February at the latest. Proof of posting responsibility lies with the applicant. No reminders will be sent by NRW. 

Burry Inlet Cockle Licensing – Customer Hub

Natural Resources Wales

Ty Cambria

29 Newport Road

Cardiff

CF24 0TP

Failure to renew an interest by 28 February in any given year will result in removal of the applicant from the Waiting List.

At any one time a person’s name may only appear once on the Waiting List. No transfer or substitute of names on the Waiting List shall be permitted for whatever reason. 

Any person being the holder of a licence under the Order cannot also hold a position on the Waiting List.

Should a licence become available, it will be offered to the applicant at the top of the Waiting List provided they comply with such conditions as NRW may determine, and in accordance with the same conditions that apply to existing (protected) licencees where appropriate. Any person not wishing to take up the offer of a licence, the offer will be given to the next person down on the Waiting List. The individual who refuses a short-term non-renewable licence retains their position on the Waiting List.

Any person on the Burry Inlet waiting list who is convicted of a relevant offence, or who admits committing the offence by way of accepting a Formal Caution, may, at NRW’s discretion, be removed from the Waiting List. Should the Waiting List be open at that time, or at a later time, that person may make a fresh application to be added to the bottom of the list. 

Licence duration

Licences will ordinarily be granted for a period of 12 months. The period will run from 1 April until 31 March of the following year. NRW reserves the right to issue short-term non-renewable licences for less than 12 months according to the stock management, marketing and other conditions prevailing at the time.

Licence conditions

Dynamic and reactive management of a commercial fishery in the marine environment which will by nature experience conditions that are difficult to predict, is best achieved through the imposition of licence conditions. 

A licencee must not fish for or take cockles from the Fishery unless in accordance with the restrictions and regulations of the Fishery which includes those contained within the Burry Inlet Cockle Fishery Order, this Management Plan, relevant Welsh Government Statutory Instruments and conditions contained within a Licence to Fish for Cockles.

Licence conditions may exist for several reasons, including but not limited to:

  1. Ensuring that fishing activity is carried out in a way that causes minimal impact to the Fishery and wider environment e.g. prohibiting fishing activity in the seagrass and saltmarsh areas of the estuary covered by the Order
  2. Ensuring that fishing activity is carried out in a way that supports sustainability of the Fishery for the future e.g. specifying the use of a fixed gauge instrument to collect cockles which allows spat cockle to return to the beds and continue growing
  3. Enabling adaptable management of the Fishery to maximise economic potential while ensuring protection of special features e.g. requiring timely submission of catch returns to monitor fishing effort against the TAC
  4. Ensuring that those fishing under a licence are accountable for their activity and catch e.g. requiring bags to be tagged with gatherer’s licence number
  5. Assisting with effective regulation of the Fishery e.g. specifying certain egress points from the Fishery

Licence conditions are subject to review annually to ensure they are fit for purpose.

NRW may, if it deems necessary, amend licence conditions during the season (lifetime of a licence) through issue of a Notice to Cocklers to respond to changing factors in the Fishery or to ensure that conditions are robust and support efficient and effective management and regulation of the Fishery.

NRW may in some circumstances temporarily relax or suspend licence conditions to respond to events in the Fishery through issue of Notice to Cocklers for example natural environmental events such as rouching. (see Appendix 1) 

Licence fees

The licence fee must be paid in full by the applicant or licensee by the 1st April unless by prior written agreement of NRW.

No protected licence will be offered if fees are outstanding from a previous season. Any payments in arrears will need to be resolved before a new licence is offered.

The 2020-2021 licence fee of £684 was set in 2004 by the South Wales Sea Fisheries Committee. This figure does not fulfil the current (2020-21) management costs of the Fishery; it contributes to less than a quarter. The current management regime relies heavily on Welsh Government Grant in Aid funding.

In 2004 it was estimated that the licence fee (£684) represented less than 2% of a gatherers’ earnings. By 2011 it was estimated that the fee represented more than an estimated 12%. Based on data submitted for the 2017-18 season, the licence fee represented just over 4% of estimated earnings (based on an average price of 40p/kg), excluding those who reported zero catch.

Fees for short-term non-renewable licences will be pro-rata for the duration of the licence based on the full annual fee of a protected licence.

The licence fees may be revised with the consent of the Welsh Minister within the lifespan of the Management Plan.

Cancellation of a licence

Where a licence holder is convicted of an offence of contravening a restriction or regulation as set out in the Order or the Management Plan, NRW will conduct an internal review to decide whether to seek Ministerial approval to cancel the licence. This review will occur for every conviction to ensure consistency. 

Enforcement

The principles of good regulation will be adopted in the Fishery. NRW will be transparent, accountable, proportionate, consistent and targeted in its regulatory and enforcement activities. These principles are explained further in NRW’s Enforcement and Prosecution Policy.

NRW will also follow its principles to deliver sustainable management of natural resources through its regulatory approach in the Fishery. These principles are:

  • deliver outcomes
  • be intelligent
  • prepared to challenge
  • use full range of tools available
  • be flexible
  • bring right skills/expertise together
  • be efficient and effective
  • be clear on what is done and why

NRW will support licensees compliance with the restrictions and regulations in the Fishery through engagement, education and enabling. Should any licensee commit a breach of the restrictions and regulations they will be dealt with in accordance with NRWs Enforcement and Prosecution Policy. (see Appendix 4)  

The full range of enforcement tools will be used to achieve compliance in the Fishery and tackle illegal activity. This includes but is not limited to providing advice and guidance, issuing warnings, offering formal cautions and taking prosecutions.

When deciding on a suitable enforcement response consideration is given to the desired outcome of the response. Actions may be taken to stop an activity, restore or remediate, bring into compliance, punish and/or deter or a combination of all of these.

Public interest factors are considered for each case in determining the suitable responses to offences. These include intent, environmental effect, previous history and attitude. A full list of public interest factors and further details can be found in NRW’s Guidance on Enforcement and Sanctions.

Licences may be suspended for certain breaches of conditions.

Examples of offences

A number of offences are applicable to activities in the Fishery as seen in Annex 3.

CEFAS / Food Standards Agency

Bivalve mollusc (shellfish) harvesting areas are classified according to the extent of microbial (faecal) contamination as shown by monitoring of E. coli in shellfish flesh.

Treatment processes are stipulated according to the classification status of the area.

The Food Standards Agency has a statutory responsibility for ensuring that monitoring and classification programmes are in place to meet legal requirements. The Food Standards Agency will advise NRW on any actions required due to public health issues, such as temporary closures.

Bio-security

Bio-security means taking steps to ensure good hygiene practices are in place to minimise the risk of introducing and spreading disease and invasive non-native species (INNS) into an area. NRW advise that licensees adhere to NRW’s cockle fishery bio-security plan.       

Stakeholder communication and engagement

The principal mechanism for stakeholder engagement will be the Burry Inlet Management Advisory Group (BIMAG). BIMAG will meet on a regular basis and   work with NRW to inform and develop the management of the Fishery. The successful management of the Fishery benefits immensely from the knowledge and experience of the licencees.

Membership of BIMAG needs to represent the range of community and regulatory bodies and their views, but not be too large to work in detail together and maintain consistent attendance. NRW will invite people who can show that they represent the views of others, not just individual opinions. The membership list will include 4 representatives of the Burry Inlet Licenced Cockle Gatherers, representatives from NRW, and representatives from each of the following organisations: 

Swansea City Council, Carmarthenshire County Council, the Shellfish Association of Great Britain (SAGB), and representatives from each of the main cockle processors within the Burry Inlet. Other people will be invited to meetings as appropriate.

Changes to any licence conditions, bed closures, payments and general fishery operations will be communicated to all licencees through the written "Notice to (an accepted formal letter regarding any fishery management issues).

NRW will communicate with all licencees on a regular basis.

Evaluation/monitory of plan objectives

Objective 1: to deliver and maintain a sustainable fishery which can provide regular income to licensees

This objective will be monitored through:

  • Liaison with Burry Inlet Management Advisory Group (BIMAG) to agree the TAC, quotas and other management decisions
  • Stock monitoring / maintenance of exploitable stock at predicted levels and improving understanding of cockle population dynamics.

Objective 2: to avoid adverse effects on the European designated site and local residents.

This objective will be monitored through: 

  • Completing and implementing the latest and most appropriate bird food / stock models available with regard to calculating the TAC
  • Ensuring there is no detriment to the achievement of Favourable Conservation Status (FCS) for relevant SAC, SPA and Ramsar features
  • Monitoring beds for illegal fishing
  • Ensuring access and exit from the cockle beds is at agreed points.

Objective 3: to improve management, monitoring and enforcement within the Fishery. 

This objective will be monitored through:

  • Regulation of the Fishery according to current statutory requirements.
  • Use of resources to improve understanding of population dynamics.
  • Application of this Management Plan
  • Ensure regular monitoring of catch and compliance with the Management Plan.
  • Use the most appropriate stock model to predict food requirements for birds of the SPA and SSSI, predict effects on shorebird populations of different management scenarios, and recommend methods for setting sustainable TAC.

Appendices

1. Rouched cockle reporting procedure

The following steps outline the procedure for reporting and substantiating large scale rouching events following which NRW may temporarily suspend or relax licence conditions to facilitate the removal of rouched cockle.

  1. Rouched cockle events are reported to NRW by a licensee
  2. NRW will endeavour to substantiate rouching and establish quantity and location, preferentially by site attendance the same or following day. Where this is not possible alternative ways of confirming the occurrence may be used.
  3. NRW review the catch return data to date against the TAC and the volume of rouched cockle.
  4. NRW documents details of the rouching event and makes a decision with regard to suspension or relaxation of licence conditions.
  5. Authorisation to remove rouched cockle by suspending or relaxing licence conditions may not be granted for a number of reasons, including, if:
    • There is limited capacity within the TAC and it is considered that this activity could result in the Fishery having to be closed prematurely once the TAC is reached
    • NRW has been unable to substantiate the rouched cockle event
    • The quantity of rouched cockle is insufficient to warrant the process, e.g. will naturally be cleared within a couple of days under existing daily quotas
    • It is considered that the authorisation may be detrimental to the Fishery in any way
  6. Where it is appropriate to suspend or relax licence conditions this may include changes to any of the following:
    • Maximum daily quota
    • Minimum or maximum sizes (if applicable)
    • Requirement to tag bags
    • Restrictions on the equipment that can be used to collect cockle
  7. A written Notice to Cockles detailing the temporary changes to licence conditions and the timeframe these are relevant will be sent to all licencee by post.
  8. If a Notice to facilitate the clearing of rouched cockle is not issued all existing licence conditions remain regardless of whether rouched cockle is present and being gathered.  Any breach of licence condition when a Notice is not in place or of a condition not relaxed or suspended through a Notice is an offence.

2. Health and safety guidance and requirements

This document draws attention to the health and safety guidance and requirements for gathering cockles and working intertidally for licensees and other users of the fishery.

Qualifications for cockle gathering

  • Foreshore gatherers safety course/certificate.

Boat use

The qualifications below will be required for licensees using a vessel to access the fishery:

  • Royal Yachting Association (RYA) Power Boat Level 2 with command endorsement training or equivalent course or Sea Fish Industry Authority under 16.5m skipper ticket.

Safety advice for boat use/vessels

See the information and guidance below provided by the Marine and Coastguard Agency on safety advice for boat/vessels involved in cockling operations and their responsibility to regulate and enforce:

A vessel involved in any manner with regard to the transportation of personnel, equipment or cargo for cockling in the area will be operating commercially.  It will be expected that all commercially operating vessels are certificated and comply with the appropriate United Kingdom legislation and guidance, including but not limited to:

SI2016/354 - The Merchant Shipping (Small Workboats and Pilot Boats) (Amendment) Regulations 2016

SI1998/1609 - The Merchant Shipping (Small Workboats and Pilot Boats) – see above amendments

MSN 1892 – The workboat code edition 2 (for vessel constructed after 31st December 2018

MGN 280 - Small Vessels in Commercial Use for Sport or Pleasure, Workboats and Pilot Boats – Alternative Construction Standards (for vessel constructed before 31st December 2018)

SI1997/2962 - The Merchant Shipping and Fishing Vessels (Health and Safety at Work)

MIN 538 – Authorization of certifying authority

These regulations cover vessels up to 24m load line length and carrying up to 12 passengers or equivalent weight in cargo (approximately 1000kg). More cargo may be permitted if the vessel has appropriate approved stability information.

The Maritime and Coastguard Agency has delegated the survey and certification work to certifying authorities.  MIN 538, as listed above, provide the details of the certifying authorities.

Additionally, any Registered Fishing Vessel used for transport of catch will be classed as cargo carrying and as such will also be required to comply with the above regulations.

It is the responsibility of the owner/managing agent and skipper to ensure that they are complying with all the relevant applicable legislation. 

These types of operations are associated with specific risks and hazards including, but not limited to, night work and fatigue, effect of tides, adverse weather conditions, towing. The owner shall evaluate the risks with the aim of reducing them and creating a safe working environment, adopting procedures and instructions which shall be documented and form part of a Safety Management System.

Contravention of any provision shall be an offence by the owner and the master of the vessel punishable on summary conviction by a fine not exceeding the statutory maximum, or on conviction on indictment by imprisonment for a term not exceeding two years or a fine, or both. 

In any case where a vessel does not comply with the requirements of these Regulations, that vessel shall be liable to be detained.

Further information on this legislation can be sought from the Maritime and Coastguard Agency.

3. List of offences

Section 3(3) of the Sea Fisheries (Shellfish) Act 1967: “Any such person who dredges, fishes for or takes shellfish of any description to which any such order applies in contravention of any such restrictions or regulation, or without paying any such toll or royalty, as aforesaid shall be guilty of an offence…”

Section 292(1) of the Marine and Coastal Access Act 2009: “A person is guilty of an offence if – (a) the person fails without reasonable excuse to comply with a requirement reasonably made, or a direction reasonably given, by an enforcement officer in the exercise of any power conferred by this Part, or (b) the person prevents any other person from complying with any such requirement or direction”

Section 292(4) of the Marine and Coastal Access Act 2009: “A person who intentionally obstructs an enforcement officer in the performance of any of the officer’s functions under this act is guilty of an offence”

Section 292(5) of the Marine and Coastal Access Act 2009: “A person who assaults an enforcement officer in the performance of any of the officer’s functions under this Act is guilty of an offence”

4. Enforcement and prosecution policy

Introduction

From 1st April 2013 the Natural Resources Body for Wales took the combined functions of the Countryside Council for Wales, and the welsh devolved functions of the Environment Agency in Wales and the Forestry Commission in Wales. This policy supersedes all previous enforcement policy documents of these legacy bodies in Wales and is the first enforcement policy statement covering the new organisation in Wales. This policy also applies to ongoing investigations which were commenced by the Environment Agency in Wales, the Forestry Commission in Wales and the Countryside Council for Wales prior to 1st April 2013.

Audience - All employees, in particular legal and operational staff.

Our aim-  Our aim is deliver the best possible environmental, social and economic outcomes for people and communities in Wales both now and in the future. We will achieve this through education, by providing advice and by regulating activities. Provision of clear advice and guidance will be our main approach to secure compliance but securing compliance with legal requirements, by using enforcement powers including civil sanctions and prosecution, is an important part of achieving this aim.

Our functions -  Our functions are extensive. They include the management of Wales’s forests and woodlands, pollution control, waste regulation, the management of water resources, flood and coastal risk management, fisheries, navigation and the safeguarding of protected sites and species. We regulate a range of activities, from recreational pursuits and the control of plant diseases, to the protection of rare species and the control of emissions from complex industrial processes.

Working with others - Our staff work with local government and other regulators on matters such as planning, air pollution, public health and occupational safety to ensure coherent regulation. They also work with many conservation bodies, voluntary groups and non governmental organisations in order to achieve common goals. Where we and another enforcement body both have the power to take enforcement action, we will liaise with that other body to ensure we take a co-ordinated, effective and consistent approach, and to ensure that any action we take is appropriate for the offence.

Our general approach - We regard prevention as better than cure. Our general approach is to engage with landowners and business to educate and enable compliance or prevent harm. We offer information and advice to those we regulate and seek to avoid bureaucracy or excessive cost. We encourage individuals and businesses to put the environment first and to integrate good environmental practices into normal working methods. We will give proper consideration to the value of economic progress.

Our approach to non compliance - If an operator or individual is not complying, we normally provide advice and guidance to help them do so. Where appropriate, we agree solutions and timescales for making any improvements. We try to match our response to the circumstances. The use of formal enforcement powers and sanctions may also be necessary.

Principles - This policy sets out the general principles we follow in relation to enforcement and sanctioning. It is to be used in conjunction with the more detailed Guidance on Enforcement and Sanctions and any published Regulatory Position Statements Natural Resources Wales may chose to adopt. We will also make appropriate information available on our use of sanctions. 

Our approach to enforcement

Definition - For the purpose of this statement, enforcement means any action we take where we suspect an offence has occurred or in some cases is about to occur. This may range from providing advice and guidance, serving notices through to prosecution, or any combination that best achieves the desired outcome. In some cases, under the Environmental Damage Regulations 2009, enforcement action may be required in the absence of any suspected offence, but in most cases an activity that leads to ‘environmental damage’ under the Regulations will also constitute an offence under environmental legislation.

Use of sanctions - Within this overall approach, where an offence has been committed and the delivery of advice and guidance has not or will not achieve the necessary outcome, we will normally consider issuing some form of sanction as well as taking any other preventative or remedial action necessary to protect the environment or people. We aim to use civil and criminal sanctions in a manner that is appropriate to the offence, as described in our Guidance on Enforcement and Sanctions.

Enforcement options

The options we have available include:

  • providing advice and guidance.
  • issuing a warning.
  • statutory enforcement notices and works notices.
  • prohibition notices.
  • suspension or revocation of environmental permits variation of permit. conditions.
  • carrying out remedial works.
  • civil sanctions.
  • other civil and financial sanctions including Fixed Penalty Notices.
  • issuing a formal caution.
  • prosecution and orders ancillary to prosecution.
  • sanctions used in combination.

We believe that publishing information on our enforcement activities, where appropriate, raises awareness of the need to comply. We issue press releases and other publicity relating to offences and offenders, proportionate to the sanction.

Cost recovery - Where the law allows, we will always seek to recover the costs of investigation and enforcement proceedings. Where we incurred costs, for example where we have carried out remedial works, we will seek to recover the full costs incurred from those responsible in accordance with the ‘polluter pays’ principle.

Penalty principles

We expect full voluntary compliance with relevant legislative requirements and permit provisions. When considering the appropriate course of action to ensure compliance we aim to follow the Macrory Penalty Principles which are set out in the Regulators’ Compliance Code.

These state that enforcement and sanctions should:

  • aim to change the behaviour of the offender.
  • aim to eliminate any financial gain or benefit from non-compliance.
  • be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction.
  • be proportionate to the nature of the offence and the harm caused.
  • aim to restore the harm caused by regulatory non-compliance, where appropriate.
  • aim to deter future non-compliance.

Principles of regulation and enforcement

Regulators Compliance Code - We must take account of the provisions in the Regulators’ Compliance Code when devising and implementing regulatory policies and systems. However those provisions do not apply directly to individual cases.

The requirements of the Code do not apply in certain situations, for example:

  • where it is necessary to respond immediately to either prevent or respond to a serious breach or incident.
  • where following the provisions would defeat the purpose of the proposed enforcement action
  • where there are reasonable grounds to suspect that a serious criminal offence has been committed, in particular where such offending would have a damaging effect on legitimate business and desirable regulatory outcomes.

Principles of firm but fair regulation

We believe in firm but fair regulation.

Underlying our commitment to firm but fair regulation are the principles of:

  • proportionality in the application of the law and in securing compliance.
  • consistency of approach.
  • transparency about how we operate and what those we regulate may expect from us.
  • targeting of enforcement action.
  • accountability for the enforcement action we have taken.

Proportionality

Concept - In general, the concept of proportionality is included in much of the regulatory system by balancing action to protect the environment against the risks and costs of such action.

Balancing our response to the risk - Some incidents or breaches of regulatory requirements cause, or have the potential to cause, serious environmental damage. Others may interfere with people's enjoyment or rights, or our ability to carry out our activities. Our first response will be to prevent harm to people and the environment from occurring or continuing. Any enforcement action we take will be proportionate to the risks posed to people and the environment and also to the seriousness of the breach of the law and its impact on legitimate business.

Consistency

Approach - Consistency means taking a similar approach in similar circumstances to achieve similar ends. We aim to be consistent in the advice we give, how we respond to pollution and other incidents, use powers, and decide whether to prosecute and what sanction might be appropriate.

Discretion - However, we recognise that consistency does not mean simple uniformity. Officers need to take account of many variables:

  • the scale of environmental impact.
  • the attitude and actions of individuals and managers of businesses.
  • and the history of previous incidents or breaches. Decisions on enforcement action are a matter of professional judgement and our officers need to be able to exercise discretion. We will continue to develop arrangements to promote consistency, including effective ways to liaise with other enforcing authorities.

Transparency

Approach - Transparency is important in maintaining public confidence in our ability to regulate. It means helping regulated entities and others to understand what is expected of them and what they should expect from us. It also means making clear why an officer intends to take, or has taken, enforcement action. Our Guidance on Enforcement and Sanctions provides transparency on how we will approach and deal with offences.

How we do this - Transparency is integral to an officer’s role and we will continue to train our staff and to develop our procedures to ensure that:

  • where remedial action is required, we clearly explain why the action is necessary and when it must be carried out, making a distinction between best practice advice and legal requirements.
  • we provide the opportunity to discuss what is required to comply with the law before formal enforcement action is taken, unless urgent action is required, for example to protect the environment or to prevent evidence being destroyed.
  • where we require an operator to take urgent action, we will provide a written explanation of the reasons for this as soon as possible after the event.
  • we will provide a written explanation of any rights of appeal against formal enforcement action at the time the action is taken.

Targeting

Focus - Targeting means making sure that regulatory effort is directed primarily towards those whose activities give rise to or create the risk of serious environmental damage, where the risks are least well controlled, or against deliberate or organised crime. We will focus action on lawbreakers or those directly responsible for the risk and/or those who are best placed to control it.

Risk based approach - Our risk-based approach allows us to prioritise our inspection activity. This includes categorisation of non-compliances at permitted sites and categorisation of other incidents based on an assessment of risk to and actual impact on the environment. We will give high priority to investigations that involve organised crime, overtly criminal activity, substantial profit, threats of violence or other aggravating factors.

Regulated industry - In the case of regulated industries, management actions are important. Repeated incidents or a series of related breaches of regulatory requirements may indicate an unwillingness to change behaviour, or an inability to achieve sufficient control. These may require a review of the regulatory requirements, the ability of the operator to run the site and/or additional investment. We recognise that a poorly-managed relatively low hazard site or activity, can present a greater risk to the environment than a higher hazard site or activity, where proper control measures are in place.

Accountability

Responsibility and consultation - Accountability means that we take responsibility for our decisions and will justify them where appropriate. Our notices and enforcement and sanctioning paperwork include relevant information on how to appeal and complain. We will consult on changes to this statement and the supporting Guidance on Enforcement and Sanctions.

Working with Government - We will support periodic Government reviews of our regulatory and enforcement activities and we will report on our enforcement and sanctioning activities as required by legislation.

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