Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement
63


commits an offence.
(4)
A person guilty of an offence under subsection (3) is liable—
(a)
on summary conviction, to a fine not exceeding £50,000;
(b)
on conviction on indictment, to a fine or to imprisonment for a term not
exceeding two years or to both.
5
(5)
A sum specified in a remediation notice by virtue of section 91(7)(c) is
recoverable as a civil debt.
Civil sanctions
93
Fixed monetary penalties
(1)
The appropriate licensing authority for any area may by order make provision
10
to confer on the appropriate enforcement authority for that area the power by
notice to impose on a person in relation to an offence under this Part a fixed
monetary penalty.
(2)
Provision under this section may only confer such a power in relation to a case
where the enforcement authority is satisfied beyond reasonable doubt that the
15
person has committed the offence.
(3)
For the purposes of this Part a “fixed monetary penalty” is a requirement to pay
to the enforcement authority a penalty of a prescribed amount.
(4)
The amount of the fixed monetary penalty that may be imposed in relation to
an offence may not exceed the maximum amount of the fine that may be
20
imposed on summary conviction for that offence.
(5)
In this section “prescribed” means prescribed in an order made under this
section.
94
Fixed monetary penalties: procedure
(1)
Provision under section 93 must secure the results in subsection (2).
25
(2)
Those results are that—
(a)
where the enforcement authority proposes to impose a fixed monetary
penalty on a person, the authority must serve on that person a notice of
what is proposed (a “notice of intent”) which complies with subsection
(3),
30
(b)
the notice of intent also offers the person the opportunity to discharge
the person’s liability for the fixed monetary penalty by payment of a
prescribed sum (which must be less than or equal to the amount of the
penalty),
(c)
if the person does not so discharge liability—
35
(i)
the person may make written representations and objections to
the enforcement authority in relation to the proposed
imposition of the fixed monetary penalty, and
(ii)
the enforcement authority must at the end of the period for
making representations and objections decide whether to
40
impose the fixed monetary penalty,

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement
64

(d)
where the enforcement authority decides to impose the fixed monetary
penalty, the notice imposing it (“the final notice”) complies with
subsection (5), and
(e)
the person on whom a fixed monetary penalty is imposed may appeal
against the decision to impose it.
5
(3)
To comply with this subsection the notice of intent must include information
as to—
(a)
the grounds for the proposal to impose the fixed monetary penalty,
(b)
the effect of payment of the sum referred to in subsection (2)(b),
(c)
the right to make representations and objections,
10
(d)
the circumstances in which the enforcement authority may not impose
the fixed monetary penalty,
(e)
the period within which liability to the fixed monetary penalty may be
discharged, which must not exceed the period of 28 days beginning
with the day on which the notice of intent is received, and
15
(f)
the period within which representations and objections may be made,
which must not exceed the period of 28 days beginning with the day on
which the notice of intent is received.
(4)
Provision pursuant to subsection (2)(c)(ii)—
(a)
must secure that the enforcement authority may not decide to impose a
20
fixed monetary penalty on a person where the authority is satisfied that
the person would not, by reason of any defence, be liable to be
convicted of the offence in relation to which the penalty is proposed to
be imposed, and
(b)
may include provision for other circumstances in which the
25
enforcement authority may not decide to impose a fixed monetary
penalty.
(5)
To comply with this subsection the final notice referred to in subsection (2)(d)
must include information as to—
(a)
the grounds for imposing the penalty,
30
(b)
how payment may be made,
(c)
the period within which payment must be made,
(d)
any early payment discounts or late payment penalties,
(e)
rights of appeal, and
(f)
the consequences of non-payment.
35
(6)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the enforcement authority include
the following—
(a)
that the decision was based on an error of fact;
(b)
that the decision was wrong in law;
40
(c)
that the decision was unreasonable.
(7)
In this section “prescribed” means prescribed in an order made under section
93.
95
Variable monetary penalties
(1)
The appropriate licensing authority for any area may by order make provision
45
to confer on the appropriate enforcement authority for that area the power by

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement
65

notice to impose on a person in relation to an offence under this Part a variable
monetary penalty.
(2)
Provision under this section may only confer such a power in relation to a case
where the enforcement authority is satisfied beyond reasonable doubt that the
person has committed the offence.
5
(3)
For the purposes of this Part a “variable monetary penalty” is a penalty of such
amount as the enforcement authority may in each case determine.
96
Variable monetary penalties: procedure
(1)
Provision under section 95 must secure the results in subsection (2).
(2)
Those results are that—
10
(a)
where the enforcement authority proposes to impose a variable
monetary penalty on a person, the enforcement authority must serve on
that person a notice (a “notice of intent”) which complies with
subsection (3),
(b)
that person may make written representations and objections to the
15
enforcement authority in relation to the proposed imposition of the
penalty,
(c)
after the end of the period for making such representations and
objections, the enforcement authority must decide whether to impose a
penalty and, if so, the amount of the penalty,
20
(d)
where the enforcement authority decides to impose a penalty, the
notice imposing it (the “final notice”) complies with subsection (6), and
(e)
the person on whom a penalty is imposed may appeal against the
decision as to the imposition or amount of the penalty.
(3)
To comply with this subsection the notice of intent must include information
25
as to—
(a)
the grounds for the proposal to impose the penalty,
(b)
the right to make representations and objections,
(c)
the circumstances in which the enforcement authority may not impose
the penalty, and
30
(d)
the period within which representations and objections may be made,
which may not be less than the period of 28 days beginning with the
day on which the notice of intent is received.
(4)
Provision pursuant to subsection (2)(c)—
(a)
must secure that the enforcement authority may not decide to impose a
35
penalty on a person where the enforcement authority is satisfied that
the person would not, by reason of any defence raised by that person,
be liable to be convicted of the offence in relation to which the penalty
is proposed to be imposed, and
(b)
may include provision for other circumstances in which the
40
enforcement authority may not decide to impose a penalty.
(5)
Provision under subsection (2)(c) must also include provision for—
(a)
the person on whom the notice of intent is served to be able to offer an
undertaking as to action to be taken by that person (including the
payment of a sum of money) to benefit any person affected by the
45
offence,

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 4 — Delegation
66

(b)
the enforcement authority to be able to accept or reject such an
undertaking, and
(c)
the enforcement authority to take any undertaking so accepted into
account in its decision.
(6)
To comply with this subsection the final notice referred to in subsection (2)(d)
5
must include information as to—
(a)
the grounds for imposing the penalty,
(b)
how payment may be made,
(c)
the period within which payment must be made,
(d)
any early payment discounts or late payment penalties,
10
(e)
rights of appeal, and
(f)
the consequences of non-payment.
(7)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the enforcement authority include
the following—
15
(a)
that the decision was based on an error of fact;
(b)
that the decision was wrong in law;
(c)
that the amount of the penalty is unreasonable;
(d)
that the decision was unreasonable for any other reason.
97
Further provision about civil sanctions
20

Schedule 7 (which makes further provision about civil sanctions) has effect.
Chapter 4
Delegation
98
Delegation of functions relating to marine licensing
(1)
The appropriate licensing authority for an area may make an order which—
25
(a)
designates any of the delegable marine licensing functions which
would (apart from any order under this section) be exercisable by or in
relation to that authority or an enforcement authority for that area, and
(b)
provides that those functions, instead of being so exercisable, are to be
exercisable by or in relation to such person, acting on behalf of the
30
licensing authority or (as the case may be) the enforcement authority,
as is designated in the order.
(2)
The power to make an order under this section includes power to make
provision in the order conferring on the person designated (“the delegate”), so
far as acting on behalf of an enforcement authority, any power which the
35
appropriate licensing authority may confer on an enforcement authority by an
order under section 93 or 95 (fixed or variable monetary penalties).
(3)
An authority which makes an order under this section may do so only with the
consent of the delegate.
(4)
The delegate—
40
(a)
must comply with the order, and
(b)
is to be taken to have all the powers necessary to do so.

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 4 — Delegation
67

(5)
In this section “delegable marine licensing functions” means—
(a)
functions of a licensing authority under this Part, other than excepted
functions;
(b)
functions of an enforcement authority under this Part.
(6)
The excepted functions are functions under—
5
(a)
section 66(3) (altering the list of licensable marine activities);
(b)
section 67(2) (making regulations regarding the fee for an application);
(c)
section 69(6) (making regulations as to the procedure for applications);
(d)
section 73 (making regulations regarding appeals against licensing
decisions under section 71);
10
(e)
section 74(1) and (4) (making orders specifying activities which do not
require a marine licence and consulting in relation to such orders);
(f)
sections 93 and 95 (making orders conferring powers to impose civil
sanctions);
(g)
this section and section 100;
15
(h)
section 101(3) (making regulations regarding the register);
(i)
section 108 (making regulations regarding appeals against certain
notices).
99
Orders under section 98: supplementary provisions
(1)
For so long as an order made under section 98 remains in force, the designated
20
functions are exercisable by or in relation to the delegate acting on behalf of the
licensing authority or, as the case may be, the enforcement authority (and are
not exercisable by or in relation to the authority).
(2)
Subsection (1) is subject to any provision to the contrary which is included in
the order.
25
(3)
An order under section 98 may include—
(a)
such terms or conditions,
(b)
such obligations or requirements,
(c)
such financial provisions,

as the authority making the order may determine.
30
(4)
The provision that may be made under subsection (3) includes, in particular,
provision (where appropriate) as to—
(a)
the manner in which the delegate is to exercise any of the functions;
(b)
the form and manner in which licence applications must be made to the
delegate;
35
(c)
the persons to whom notice of an application should be published
under section 68, and the circumstances in which such notice should
not be published;
(d)
matters (in addition to those set out in section 69) to which the delegate
must have regard in determining licence applications;
40
(e)
the circumstances in which the delegate must exercise the power to
consult under section 69(4), and the persons who must or may be
consulted;
(f)
the form and content of any licence granted;
(g)
appeals from any decision of the delegate (whether to the licensing
45
authority or any other person);

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
68

(h)
any other provision that may be made by virtue of section 69(6).
(5)
An order under section 98 may make different provision for different cases,
different areas or different persons.
(6)
Where an order has been made under section 98 that a person other than the
appropriate licensing authority is to grant licences—
5
(a)
that other person may (in accordance with subsections (1) to (3) and (7)
of section 72) vary, suspend, revoke or transfer a licence granted before
the making of the order, and
(b)
any reference in those subsections to a licence granted by a licensing
authority includes a reference to a licence granted by that other person.
10
100
Directions to persons as regards performance of delegated functions
(1)
This section applies where any functions are exercisable by or in relation to a
person by virtue of an order made under section 98 by a licensing authority.
(2)
The authority may from time to time give directions to the person with respect
to the performance of the functions.
15
(3)
A person to whom directions are given under this section must comply with
the directions.
(4)
An authority which gives a direction under this section must publish the
direction in a manner likely to bring the direction to the attention of persons
likely to be affected by it.
20
Chapter 5
Supplementary
Register
101
Register
(1)
Each licensing authority must maintain, as respects activities in relation to
25
which it is the appropriate licensing authority and licences for those activities,
a register of licensing information.
(2)
The register must contain prescribed particulars of or relating to—
(a)
applications for licences;
(b)
licences granted;
30
(c)
variations of licences;
(d)
revocations of licences;
(e)
information supplied in connection with any licence in pursuance of
any provision of this Part;
(f)
convictions for any offence under this Part;
35
(g)
any other action taken to enforce any provision of this Part;
(h)
occasions on which any remedial action has been taken;
(i)
such other matters relating to licences or the licensable marine activities
as may be prescribed.

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
69

(3)
The register must be maintained in accordance with regulations made by the
appropriate licensing authority.
(4)
Each licensing authority must make arrangements—
(a)
for its register to be available for inspection at all reasonable times by
members of the public free of charge;
5
(b)
for copies of entries in its register to be supplied, on request, to
members of the public on payment of a reasonable charge.
(5)
Information must not appear in the register if—
(a)
the Secretary of State determines that its disclosure in the register
would be contrary to the interests of national security, or
10
(b)
the appropriate licensing authority determines that its disclosure in the
register would adversely affect the confidentiality of commercial or
industrial information where such confidentiality is provided by law to
protect a legitimate commercial interest.
(6)
The appropriate licensing authority must review a determination to exclude
15
information under subsection (5)(b) every four years.
(7)
On a review under subsection (6) the authority must include the information
in the register unless, on the application of any person to whom the
information relates, the authority determines that it should continue to be
excluded.
20
(8)
Where information of any description is excluded from a register by virtue of
subsection (5)(b), a statement must be entered in the register indicating the
existence of information of that description.
(9)
In this section “prescribed” means prescribed in regulations made under this
section.
25
Stop notices and emergency safety notices
102
Notice to stop activity causing serious harm etc
(1)
If it appears to an enforcement authority that subsections (3) and (4) are
satisfied in relation to a person carrying on an activity in its area, it may issue
a stop notice to that person.
30
(2)
A stop notice is a notice prohibiting a person from carrying on an activity
specified in the notice.
(3)
This subsection is satisfied if a person is carrying on, or is likely to carry on, a
licensable marine activity (whether or not in accordance with a marine licence).
(4)
This subsection is satisfied if the carrying on of the activity to be specified in
35
the notice—
(a)
is causing, or is likely to cause, any of the effects in subsection (5), or
(b)
is creating, or is likely to create, an imminent risk of any of those effects.
(5)
The effects are—
(a)
serious harm to the environment;
40
(b)
serious harm to human health;
(c)
serious interference with legitimate uses of the sea.
(6)
A stop notice (in addition to specifying the activity to which it relates)—