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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Schedule 11 — Consequential amendments relating to MCZs

270

 

(a)   

the Data Protection Act 1998 (c. 29), or

(b)   

Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).

      (6)  

This paragraph does not affect a power to disclose which exists apart from

this paragraph.

Schedule 11

5

Section 146

 

Consequential amendments relating to MCZs

Conservation of Seals Act 1970 (c. 30)

1          

In section 10 of the Conservation of Seals Act 1970 (power to grant licences)

in subsection (4)(d) for “a marine nature reserve under section 36 of that Act”

substitute “a marine conservation zone under section 116 of the Marine and

10

Coastal Access Act 2009”.

Wildlife and Countryside Act 1981 (c. 69)

2     (1)  

The Wildlife and Countryside Act 1981 is amended as follows.

      (2)  

The following provisions are omitted—

(a)   

sections 36 and 37;

15

(b)   

Schedule 12.

      (3)  

In consequence of sub-paragraph (2), in the italic cross-heading preceding

section 34A, the words “marine nature reserves” are omitted.

Water Resources Act 1991 (c. 57)

3          

In paragraph 5 of Schedule 25 to the Water Resources Act 1991 (powers of

20

the Environment Agency to make byelaws for flood defence and drainage

purposes) in sub-paragraph (4) for the words from “the operation of” to the

end of that sub-paragraph substitute “the operation of—

(a)   

any byelaw made by a navigation authority, harbour

authority or conservancy authority;

25

(b)   

any byelaw made under section 129 or 132 of the Marine

and Coastal Access Act 2009 (byelaws for protecting

marine conservation zones in England);

(c)   

any order made under section 134 or 136 of that Act (orders

for protecting marine conservation zones in Wales).”

30

Conservation (Natural Habitats, &c) Regulations 1994 (S.I. 1994/2716)

4     (1)  

For regulation 36 of the Conservation (Natural Habitats, &c) Regulations

1994 (S.I. 1994/2716) (byelaws for protection of European marine sites)

substitute—

“36     

Protection of European marine sites

35

(1)   

The MMO may make byelaws for the protection of a European

marine site in England under section 129 of the Marine and Coastal

Access Act 2009 (byelaws for protection of marine conservation

zones).

 
 

Marine and Coastal Access Bill [HL]
Schedule 12 — Transitional provision relating to MCZs

271

 

(2)   

The Welsh Ministers may make orders for the protection of a

European marine site in Wales under section 134 of that Act (orders

for protection of marine conservation zones).

(3)   

The provisions of Chapter 1 of Part 5 of that Act relating to byelaws

under section 129 or orders under section 134 apply, with the

5

modifications described in paragraph (4) of this regulation, in

relation to byelaws made by virtue of paragraph (1) of this regulation

or (as the case may be) orders made by virtue of paragraph (2) of this

regulation.

(4)   

The modifications are—

10

(a)   

any reference to an MCZ is to be read as a reference to a

European marine site;

(b)   

in sections 129(1) and 134(1), the reference to furthering the

conservation objectives of an MCZ is to be read as a reference

to protecting a European marine site;

15

(c)   

the reference in section 129(3)(c) to hindering the

conservation objectives stated for an MCZ is to be read as a

reference to damaging a European marine site.

(5)   

Nothing in byelaws or orders made by virtue of this regulation shall

interfere with the exercise of any functions of a relevant authority,

20

any functions conferred by or under an enactment (whenever

passed) or any right of any person (whenever vested).”

      (2)  

The amendment by this paragraph of a provision contained in subordinate

legislation is without prejudice to any power to amend that provision by

subordinate legislation.

25

Schedule 12

Section 146

 

Transitional provision relating to MCZs

1          

In this Schedule—

“the 1981 Act” means the Wildlife and Countryside Act 1981 (c. 69);

“the commencement date”, in relation to an area, means the date on

30

which paragraph 2 of Schedule 11 comes into force in relation to that

area.

2     (1)  

Any area which, immediately before the commencement date, is designated

by an order under section 36 of the 1981 Act as a marine nature reserve is to

be treated, on and after that date, as if it were a marine conservation zone

35

designated by an order under section 116.

      (2)  

The designation having effect by virtue of sub-paragraph (1) includes (in

accordance with section 118(6)(b)) the area of land designated by the order

under section 36, together with all of the water covering that land.

3          

Any byelaw which, immediately before the commencement date, is in force

40

under section 37 of the 1981 Act for the protection of any area designated as

a marine nature reserve has effect, on and after that date, as if it were—

(a)   

in the case of an area in England, a byelaw made under section 129;

(b)   

in the case of an area in Wales, an order made under section 134.

 
 

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest

272

 

4          

Any provision of this Chapter which—

(a)   

confers any function on the MMO, and

(b)   

comes into force before the date on which section 1 of this Act comes

into force,

           

has effect until that date as if it conferred that function on the Secretary of

5

State.

Schedule 13

Section 148

 

Marine boundaries of SSSIs and national nature reserves

Part 1

Introductory

10

1          

In this Schedule “the 1981 Act” means the Wildlife and Countryside Act 1981

(c. 69).

Part 2

Sites of special scientific interest

Marine boundaries of sites of special scientific interest

15

2     (1)  

Section 28 of the 1981 Act (sites of special scientific interest) is amended as

follows.

      (2)  

In subsection (1)(a) after “the local planning authority” insert “(if any)”.

      (3)  

After subsection (1) insert—

“(1A)   

The reference in subsection (1) to land includes—

20

(a)   

any land lying above mean low water mark;

(b)   

any land covered by estuarial waters.

(1B)   

Where the area of land to which a notification under subsection (1)

relates includes land falling within subsection (1A)(a) or (b) (“area

A”), it may also include land not falling within subsection (1A)(a) or

25

(b) (“area B”) if—

(a)   

area B adjoins area A, and

(b)   

any of the conditions in subsection (1C) is satisfied.

(1C)   

The conditions are—

(a)   

that the flora, fauna or features leading to the notification of

30

area A is or are also present in area B;

(b)   

that the notification of area A is by reason of any flora or

fauna which are dependent (wholly or in part) on anything

which takes place in, or is present in, area B;

(c)   

that, without the inclusion of area B, the identification of the

35

boundary of the land notified (either in the notification or on

the ground for the purposes of exercising functions in

relation to it) would be impossible or impracticable.”

 
 

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest

273

 

      (4)  

In subsection (2) for “that fact” substitute “the fact mentioned in subsection

(1)”.

      (5)  

In subsection (5) (confirmation of notification of SSSIs) after paragraph (b)

insert—

   

“In the case of a notification given in relation to land lying below

5

mean low water mark by virtue of subsection (1B), this subsection is

subject to section 28CB(4) and (6).”

      (6)  

After subsection (9) insert—

“(9A)   

For the purposes of this Part “estuarial waters” means any waters

within the limits of transitional waters, within the meaning of the

10

Water Framework Directive (that is to say, Directive 2000/60/EC of

the European Parliament and of the Council of 23 October 2000

establishing a framework for Community action in the field of water

policy).”

      (7)  

No notification under subsection (1) of that section made before the coming

15

into force of this paragraph may be questioned in legal proceedings on the

ground that the area of land to which the notification relates includes land

lying below mean low water mark.

3          

In section 28A of the 1981 Act (variation of notification under section 28), in

subsection (3)(a) after “the local planning authority” insert “(if any)”.

20

4          

In section 52(1) of the 1981 Act (interpretation of Part 2), after the definition

of “agricultural land” insert—

““estuarial waters” has the meaning given by section 28(9A);”.

Notification of additional land that is subtidal

5     (1)  

Section 28B of the 1981 Act (notification of additional land) is amended as

25

follows.

      (2)  

In subsection (2)(a) after “the local planning authority” insert “(if any)”.

      (3)  

After subsection (2) insert—

“(2A)   

The reference in subsection (1) to land includes—

(a)   

any land lying above mean low water mark;

30

(b)   

any land covered by estuarial waters.

(2B)   

If any of the conditions in subsection (2C) is satisfied, the extra land

may consist of or include an area of land not falling within

subsection (2A)(a) or (b).

(2C)   

The conditions are—

35

(a)   

that the flora, fauna or features that led to the notification of

the SSSI is or are also present in the area of the extra land not

falling within subsection (2A)(a) or (b);

(b)   

that the notification of the SSSI is by reason of any flora or

fauna which are dependent (wholly or in part) on anything

40

which takes place in, or is present in, that area;

(c)   

that, without the inclusion of that area, the identification of

the boundary of the SSSI (either in the notification or on the

ground for the purposes of exercising functions in relation to

it) is impossible or impracticable.”

45

 
 

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest

274

 

      (4)  

In subsection (3) for “such notification” substitute “notification under

subsection (2)”.

      (5)  

In subsection (7) (application of section 28(5) to (7) in relation to notifications

under section 28B)—

(a)   

after ““subsection (1)”” insert “and “subsection (1B)””;

5

(b)   

for “of this section” (in the second place where it occurs) substitute

“and subsection (2B) of this section respectively”.

      (6)  

No notification under subsection (2) of that section made before the coming

into force of this paragraph may be questioned in legal proceedings on the

ground that the area of land to which the notification relates consists of or

10

includes land lying below mean low water mark.

Enlargement of SSSI to include subtidal land

6     (1)  

Section 28C of the 1981 Act (enlargement of SSSI) is amended as follows.

      (2)  

In subsection (2)(a) after “the local planning authority” insert “(if any)”.

      (3)  

After subsection (2) insert—

15

“(2A)   

The reference in subsection (1) to land includes—

(a)   

any land lying above mean low water mark;

(b)   

any land covered by estuarial waters.

(2B)   

If any of the conditions in subsection (2C) is satisfied, the area of land

to which a notification under subsection (2) relates may include an

20

area of land not falling within subsection (2A)(a) or (b).

(2C)   

The conditions are—

(a)   

that the flora, fauna or features that led to the notification of

the SSSI is or are also present in the area of land not falling

within subsection (2A)(a) or (b);

25

(b)   

that the notification of the SSSI is by reason of any flora or

fauna which are dependent (wholly or in part) on anything

which takes place in, or is present in, that area;

(c)   

that, without the inclusion of that area, the identification of

the boundary of the SSSI (either in the notification or on the

30

ground for the purposes of exercising functions in relation to

it) is impossible or impracticable.”

      (4)  

In subsection (3) (application of section 28(2) to (8) in relation to notifications

under section 28C)—

(a)   

for “and “subsection (1)(b)”” substitute “, “subsection (1)(b)” and

35

“subsection (1B)””;

(b)   

for “and subsection (2)(b)” substitute “, subsection (2)(b) and

subsection (2B)”.

      (5)  

No notification under subsection (2) of that section made before the coming

into force of this paragraph may be questioned in legal proceedings on the

40

ground that the area of land to which the notification relates includes land

lying below mean low water mark.

 
 

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest

275

 

Guidance in relation to subtidal notifications of SSSIs

7          

After section 28C of the 1981 Act insert—

“28CA   

Guidance in relation to subtidal notifications of SSSIs

(1)   

The ministerial authority may issue guidance to Natural England

about the exercise of the power conferred by section 28(1B), 28B(2B)

5

or 28C(2B) to give a notification under section 28(1), 28B(2) or 28C(2)

(as the case may be) in relation to land lying below mean low water

mark.

(2)   

In this section and section 28CB “the ministerial authority” means—

(a)   

in relation to England, the Secretary of State;

10

(b)   

in relation to Wales, the Welsh Ministers.”

Power to call in subtidal notifications of SSSIs

8          

After section 28CA of the 1981 Act (inserted by paragraph 7) insert—

“28CB   

Power to call in subtidal notifications

(1)   

This section applies where a notification under section 28(1), 28B(2)

15

or 28C(2) has been given in relation to land lying below mean low

water mark (“the subtidal land”) by virtue of section 28(1B), 28B(2B)

or 28C(2B) (as the case may be).

(2)   

Natural England may not give notice under section 28(5)(b)

confirming the notification unless, at least 21 days before doing so,

20

they have given notice of their intention to the ministerial authority.

   

(For the meaning of “the ministerial authority”, see section 28CA.)

(3)   

At any time before the notification is confirmed the ministerial

authority may give notice to Natural England that the ministerial

authority is considering whether to give a direction under subsection

25

(5) regarding the subtidal land.

(4)   

If the ministerial authority gives notice under subsection (3), Natural

England may not give notice under section 28(5) until the ministerial

authority has given a direction under subsection (5).

(5)   

The ministerial authority may direct—

30

(a)   

that the notification (if confirmed) must include all of the

subtidal land;

(b)   

that the notification (if confirmed) must not include any of

the subtidal land;

(c)   

that the notification (if confirmed) must, or must not, include

35

such part of that land as is specified in the direction;

(d)   

that the decision whether the notification (if confirmed)

should include the subtidal land is to be taken by Natural

England.

(6)   

If the ministerial authority gives a direction under subsection (5),

40

Natural England must give notice under section 28(5)(a) or (b), in

accordance with that direction, within the period of three months

beginning with the date on which the direction is received by them.

 
 

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 3 — National nature reserves

276

 

(7)   

The ministerial authority may, before deciding whether to give a

direction under subsection (5), give to any person the opportunity

of—

(a)   

appearing before and being heard by a person appointed by

the ministerial authority for that purpose;

5

(b)   

providing written representations to such a person.

(8)   

A person appointed under subsection (7) must make a report to the

ministerial authority of any oral or written representations made

under that subsection.

(9)   

The ministerial authority may make regulations providing for the

10

procedure to be followed (including decisions as to costs) at hearings

held under subsection (7).

(10)   

The power to make regulations under subsection (9) is exercisable by

statutory instrument.

(11)   

A statutory instrument containing regulations made under

15

subsection (9) by the Secretary of State shall be subject to annulment

in pursuance of a resolution of either House of Parliament.

(12)   

A statutory instrument containing regulations made under

subsection (9) by the Welsh Ministers shall be subject to annulment

in pursuance of a resolution of the National Assembly for Wales.”

20

Denotification of SSSI on designation of area as MCZ

9     (1)  

Section 28D of the 1981 Act (denotification) is amended as follows.

      (2)  

In subsection (1) before “is not of special interest” insert “(a)” and after

“mentioned in section 28(1),” insert “or

(b)   

should no longer be the subject of a notification under section

25

28(1) because that land has been designated as (or as part of)

a marine conservation zone under section 116 of the Marine

and Coastal Access Act 2009,”.

      (3)  

In subsection (2)(a)—

(a)   

after “the local planning authority” insert “(if any)”;

30

(b)   

for “the land which Natural England no longer consider to be of

special interest” substitute “the land mentioned in subsection (1)”.

      (4)  

In subsection (3) for “that fact” substitute “the fact mentioned in subsection

(1)(a) or (b)”.

Part 3

35

National nature reserves

Marine boundaries of national nature reserves

10    (1)  

In section 35 of the 1981 Act (national nature reserves) after subsection (1)

insert—

“(1A)   

The land which may be declared to be a national nature reserve in

40

England or Wales includes—

(a)   

any land lying above mean low water mark;

 
 

 
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