Energy Bill [HL]

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Energy Bill [HL]

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
78

98
Installations in territorial waters and renewable energy zones
Installations and the safety zones around them may not be established where
interference may be caused to the use of recognised sea lanes essential to
international navigation.
99
Interference with safety of navigation
5
In assessing whether installations and the safety zones around them present a
danger to navigation, the Secretary of State shall ensure that their cumulative
effects on safety of navigation are taken fully into account.
Rights of navigation and civil aviation
100
Extinguishment etc. of public rights of navigation
10
(1)
After section 36 of the 1989 Act insert—
“36A
Declarations extinguishing etc. public rights of navigation
(1)
Where a consent is granted by the Secretary of State or the Scottish
Ministers in relation to—
(a)
the construction or operation of a generating station that
15
comprises or is to comprise (in whole or in part) renewable
energy installations situated at places in relevant waters, or
(b)
an extension that is to comprise (in whole or in part) renewable
energy installations situated at places in relevant waters or an
extension of such an installation,
20

he or (as the case may be) they may, at the same time, make a
declaration under this section as respects rights of navigation so far as
they pass through some or all of those places.
(2)
The Secretary of State or the Scottish Ministers may make such a
declaration only if the applicant for the consent made an application for
25
such a declaration when making his application for the consent.
(3)
A declaration under this section is one declaring that the rights of
navigation specified or described in it—
(a)
are extinguished;
(b)
are suspended for the period that is specified in the declaration;
30
(c)
are suspended until such time as may be determined in
accordance with provision contained in the declaration; or
(d)
are to be exercisable subject to such restrictions or conditions, or
both, as are set out in the declaration.
(4)
A declaration under this section—
35
(a)
has effect, in relation to the rights specified or described in it,
from the time at which it comes into force; and
(b)
continues in force for such period as may be specified in the
declaration or as may be determined in accordance with
provision contained in it.
40
(5)
A declaration under this section—
(a)
must identify the renewable energy installations, or proposed
renewable energy installations, by reference to which it is made;

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
79

(b)
must specify the date on which it is to come into force, or the
means by which that date is to be determined;
(c)
may modify or revoke a previous such declaration, or a
declaration under section 101 of the Energy Act 2004; and
(d)
may make different provision in relation to different means of
5
exercising a right of navigation.
(6)
Where a declaration is made under this section by the Secretary of State
or the Scottish Ministers, or a determination is made by him or them for
the purposes of a provision contained in such a declaration, he or (as
the case may be) they must either—
10
(a)
publish the declaration or determination in such manner as
appears to him or them to be appropriate for bringing it, as soon
as is reasonably practicable, to the attention of persons likely to
be affected by it; or
(b)
secure that it is published in that manner by the applicant for
15
the declaration.
(7)
In this section—

‘consent’ means a consent under section 36 above;

‘extension’, in relation to a renewable energy installation, has the
same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;
20

‘relevant waters’ means waters in or adjacent to Great Britain
which are between the mean low water mark and the seaward
limits of the territorial sea.”
(2)
In paragraph 8 of Schedule 8 to that Act (supplementary provisions relating to
applications under section 36 of that Act), after sub-paragraph (2) insert—
25
     “(3)
Where an application for a declaration under section 36A of this Act
is made with an application for a consent under section 36 of this Act,
the application for the declaration shall be treated for the purposes of
this Schedule as part of the application for the consent.”
(3)
In section 3D of that Act (principal objective and general duties not to apply to
30
Secretary of State’s functions under section 36 or 37), for “section 36 or 37”
substitute “sections 36 to 37”.
101
Further provision relating to public rights of navigation
(1)
This section applies where a consent falling within subsection (2) has been
granted by the Secretary of State or the Scottish Ministers (“the consenting
35
authority”) under section 36 of the 1989 Act (consent required for construction
etc. of generating stations) before the commencement of section 100.
(2)
A consent falls within this subsection if it relates to—
(a)
the construction or operation of a generating station that comprises or
is to comprise (in whole or in part) renewable energy installations
40
situated in relevant waters; or
(b)
an extension that comprises or is to comprise (in whole or in part)
renewable energy installations so situated or an extension of such an
installation.
(3)
On an application made by the generator, the consenting authority may make
45
a declaration under this section as respects rights of navigation—

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
80

(a)
so far as they pass through the places where the renewable energy
installations are situated or are to be situated; or
(b)
so far as they pass through some of those places.
(4)
A declaration under this section is one declaring that the rights of navigation
specified or described in it—
5
(a)
are extinguished;
(b)
are suspended for the period that is specified in the declaration;
(c)
are suspended until such time as may be determined in accordance
with provision contained in the declaration; or
(d)
are to be exercisable subject to such restrictions or conditions, or both,
10
as are set out in the declaration.
(5)
Subsections (4) to (6) of section 36A of the 1989 Act (declarations extinguishing
etc. rights of navigation upon grant of consent under section 36 of that Act)
shall apply in relation to declarations under this section as they apply in
relation to declarations under that section, but with the omission of subsection
15
(5)(c).
(6)
Before making a declaration under this section, the consenting authority
must—
(a)
publish details of the generator’s application in such manner as that
authority considers appropriate;
20
(b)
give notice of that application to such persons as that authority
considers appropriate;
(c)
consult the persons to whom notice has been given;
(d)
make such arrangements as that authority considers appropriate for a
copy of the application to be made available for inspection by members
25
of the public; and
(e)
give such opportunities to such persons as that authority considers
appropriate to make representations to the authority about the
application.
(7)
The consenting authority may satisfy the requirements of paragraphs (a) to (d)
30
of subsection (6) by securing that the things that it is required to do under those
paragraphs are done on its behalf by the generator.
(8)
In this section—

“generator”, in relation to a consent under section 36 of the 1989 Act,
means the person who is constructing or operating the station in
35
question, or making the extension in question, or who is proposing to
do so;

“relevant waters” has the same meaning as in section 36A of the 1989 Act.
102
Application of civil aviation regulations to renewable energy installations
(1)
Schedule 13 to the Civil Aviation Act 1982 (c. 16) (subordinate instruments) is
40
amended as follows.
(2)
In the Table in Part 2 (provisions applying to certain powers), in the entry for
section 60, in column 4 (applicable paragraphs of Part 3 of the Schedule), for
“and 6” substitute “, 6 and 7”.
(3)
In paragraph 6 of Part 3 (extra-territorial provisions), in sub-paragraph (4) for
45
“sub-paragraph (5)” substitute “sub-paragraphs (5) and (7)”.

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
81

(4)
After sub-paragraph (6) of that paragraph insert—
     “(7)
So far as relates to a provision of an Order in Council or regulation
concerning aircraft on or in the neighbourhood of a renewable
energy installation, this paragraph—
(a)
shall apply to all aircraft, and not only to aircraft registered in
5
the United Kingdom; and
(b)
shall apply to the doing of anything in relation to an aircraft
by any person, irrespective of nationality, or (in the case of a
body corporate) of the law under which it was incorporated.
      (8)
For the purposes of sub-paragraphs (5) and (7) the neighbourhood of
10
an installation includes anywhere within 500 metres of that
installation.
      (9)
In this paragraph ‘renewable energy installation’ has the same
meaning as in Chapter 2 of Part 2 of the Energy Act 2004.”
(5)
After that paragraph insert—
15
“7    (1)
Without prejudice to paragraph 6 above, an Air Navigation Order
may make provision in relation to renewable energy installations
located within a Renewable Energy Zone as if those installations
were located in a part of the United Kingdom.
      (2)
Such provision may apply to any person irrespective of nationality
20
or (in the case of a body corporate) of the law under which it was
incorporated.
      (3)
In this paragraph ‘renewable energy installation’ and ‘Renewable
Energy Zone’ have the same meanings as in Chapter 2 of Part 2 of the
Energy Act 2004.”
25
Supplementary provisions of Chapter 2 of Part 2
103
Amendments of 1989 Act consequential on Chapter 2 of Part 2
(1)
The 1989 Act is amended as follows.
(2)
In section 61(2) (concurrent proceedings for compulsory purchase and in
respect of consents under section 36 of that Act), at the end insert “and with any
30
related proceedings under Schedule 16 to the Energy Act 2004”.
(3)
In section 62(3) (power to combine inquiries)—
(a)
in paragraph (a), after “this Part” insert “or Schedule 16 to the Energy
Act 2004”; and
(b)
in paragraph (b), after “this Part” insert “, that Schedule”.
35
(4)
In section 64(1) (interpretation of Part 1)—
(a)
after the definition of “authorised supplier” insert—

“‘construct’ and ‘construction’, in relation to so much of a
generating station as comprises or is to comprise renewable
energy installations, has the same meaning as in Chapter 2 of
40
Part 2 of the Energy Act 2004;”;
(b)
after the definitions of “relevant condition” and “relevant requirement”

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
82

insert—

“‘renewable energy installation’ and ‘Renewable Energy Zone’
have the same meanings as in Chapter 2 of Part 2 of the
Energy Act 2004;”.
(5)
After section 108 insert—
5
“108A
  Extraterritorial operation of Act
(1)
Where by virtue of this Act an act or omission taking place outside
Great Britain constitutes an offence, proceedings for the offence may be
taken, and the offence may for all incidental purposes be treated as
having been committed, in any place in Great Britain.
10
(2)
Provision made by or under this Act in relation to places outside Great
Britain—
(a)
so far as it applies to individuals, applies to them whether or not
they are British citizens; and
(b)
so far as it applies to bodies corporate, applies to them whether
15
or not they are incorporated under the law of a part of the
United Kingdom.”
104
Other amendments consequential on Chapter 2 of Part 2
(1)
In section 8 of the Continental Shelf Act 1964 (c. 29) (application of Submarine
Telegraph Act 1885 to pipelines and submarine cables)—
20
(a)
in subsection (1), omit “high-voltage”; and
(b)
in subsection (1A), for the words from “pipe-lines under the high seas”
onwards substitute “submarine cables and pipe-lines under the high
seas includes a reference to submarine cables and pipe-lines under the
territorial sea adjacent to the United Kingdom or under waters in an
25
area designated under section 1(7) of this Act”.
(2)
In section 23 of the Police and Criminal Evidence Act 1984 (c. 60) (meaning of
premises)—
(a)
in the definition of “premises”, for the “and” at the end of paragraph (b)
substitute—
30
“(ba)
any renewable energy installation;”;
(b)
after the definition of “offshore installation” insert—

“‘renewable energy installation’ has the same meaning as
in Chapter 2 of Part 2 of the Energy Act 2004.”
(3)
In section 10(10) of the Petroleum Act 1998 (c. 17) (section to apply to
35
installations in transit), after “transit” insert “but does not apply to an
installation that is a renewable energy installation (within the meaning of
Chapter 2 of Part 2 of the Energy Act 2004)”.
(4)
After section 47 of that Act insert—
“47A
Factors for the Secretary of State to take into account
40
(1)
The matters to which the Secretary of State may have regard, in
exercising or performing the powers and duties conferred or imposed
on him by or under this Act, include, in particular—
(a)
activities in relevant waters for or in connection with the
generation of electricity;
45

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
83

(b)
proposals made by a person to carry on such activities;
(c)
the proposals that it appears to the Secretary of State may be
made in the future for the carrying on of such activities; and
(d)
the likelihood that activities will in due course be carried on in
accordance with proposals falling within paragraph (b) or (c).
5
(2)
The reference in subsection (1) to activities in connection with the
generation of electricity in relevant waters includes—
(a)
the transmission, distribution and supply of the electricity
generated; and
(b)
the doing of anything (whether by way of investigations, trials
10
or feasibility studies or otherwise) with a view to ascertaining
whether activities in relevant waters for or in connection with
the generation of electricity are, in a particular case, practicable
or commercially viable, or both.
(3)
In this section—
15

‘distribution’, ‘generate’, ‘supply’ and ‘transmission’, and
cognate expressions, have the same meanings as in Part 1 of the
Electricity Act 1989; and

‘relevant waters’ means—
(a)
waters in or adjacent to the United Kingdom up to the
20
seaward limits of the territorial sea; or
(b)
waters in a Renewable Energy Zone (within the
meaning of Chapter 2 of Part 2 of the Energy Act 2004).”
105
Interpretation of Chapter 2 of Part 2
(1)
In this Chapter—
25

“construct”, in relation to an installation or an electric line or in relation to
a generating station so far as it is to comprise renewable energy
installations, includes—
(a)
placing it in or upon the bed of any waters;
(b)
attaching it to the bed of any waters;
30
(c)
assembling it;
(d)
commissioning it; and
(e)
installing it;

and “construction” is to be construed accordingly;

“decommission”, in relation to an installation or an electric line,
35
includes—
(a)
removing it from the bed of any waters;
(b)
demolishing it; and
(c)
dismantling it;

“distribution” and “electric line” have the same meanings as in Part 1 of
40
the 1989 Act;

“extend” and “extension”—
(a)
in relation to a generating station, have the same meanings as in
Part 1 of the 1989 Act; and
(b)
in relation to an installation, have the same meanings as in
45
relation to a generating station;

“installation” includes artificial island, structure and device;

Energy Bill [HL]
Part 2 — Sustainability and Renewable Energy Sources
Chapter 2 — Offshore production of energy
84


“master” includes—
(a)
in relation to a hovercraft, the captain;
(b)
in relation to any submersible apparatus, the person in charge
of the apparatus; and
(c)
in relation to an installation in transit, the person in charge of
5
the transit operation;

“renewable energy installation” is to be construed in accordance with
subsections (3) to (5);

“Renewable Energy Zone” has the meaning given by section 83(4);

“safety zone” means an area which is a safety zone for the purposes of this
10
Chapter by virtue of section 94;

“Scottish part”, in relation to a Renewable Energy Zone, means so much
of that Zone as is designated under section 83(5);

“Scottish waters” means—
(a)
the internal waters of the United Kingdom that are in or are
15
adjacent to Scotland; or
(b)
so much of the territorial sea of the United Kingdom as is
adjacent to Scotland;

“submersible apparatus” has the meaning given by section 88(4) of the
Merchant Shipping Act 1995 (c. 21);
20

“supply”, in relation to electricity, has the same meaning as in Part 1 of the
1989 Act;

“transmission”, in relation to electricity, has the same meaning as in Part
1 of the 1989 Act;

“vessel” includes—
25
(a)
a hovercraft;
(b)
any submersible apparatus; and
(c)
an installation in transit.
(2)
References in this Chapter to the production of energy from water include, in
particular, references to its production from currents and tides.
30
(3)
In this Chapter “renewable energy installation” means—
(a)
an offshore installation used for purposes connected with the
production of energy from water or winds;
(b)
an installation in the course of construction at a place where it is to be
used as an offshore installation within paragraph (a);
35
(c)
an installation that has ceased to be an installation within paragraph (a)
while remaining an offshore installation (whether or not at the same
place);
(d)
an installation that is being decommissioned at a place where it has
been an installation within paragraph (a) or (c);
40
(e)
an installation in transit to or from a place where it is to be, or has been,
used for purposes that would make it, or made it, an installation within
paragraph (a);
(f)
an installation in transit to or from a place where it is to be, or was, an
installation within paragraph (c).
45
(4)
In subsection (3) “offshore installation” means an installation which is situated
in waters where—
(a)
it permanently rests on, or is permanently attached to, the bed of the
waters; and