Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
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(a)
must state the enforcement authority’s grounds for believing that
subsections (3) and (4) are satisfied;
(b)
must state the date and time from which the prohibition is to take effect
(which may be a time on the date of the notice but must allow a period
for compliance which is reasonable in all the circumstances of the case);
5
(c)
may require the person to take such steps as the authority considers
appropriate to ensure that the cessation of the activity takes place
safely.
(7)
Except in a case falling within subsection (9), a stop notice—
(a)
ceases to have effect at the end of the period of 7 days (or such shorter
10
period as may be specified in the notice) beginning with the date on
which the prohibition takes effect, but
(b)
may be renewed for a period specified in a further notice.
(8)
A stop notice may be renewed more than once under subsection (7)(b), but not
so that it has effect for an aggregate period exceeding 35 days.
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(9)
If a stop notice relating to a licensable marine activity is issued to a person who
does not hold a marine licence authorising that activity, the stop notice may
remain in force until such time (if any) as such a licence is granted to that
person.
103
Further provision as to stop notices
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(1)
Any stop notice issued by an enforcement authority—
(a)
must be served on any person carrying on, or in control of, the activity
to which the notice relates, and
(b)
if a marine licence has been granted in relation to that activity, may also
be served on the licensee.
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(2)
An enforcement authority may by a further notice—
(a)
revoke a stop notice;
(b)
vary a stop notice so as to substitute a later date for the date specified
in accordance with section 102(6)(b).
(3)
A person who fails to comply with a stop notice commits an offence.
30
(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.
104
Emergency safety notices
35
(1)
This section applies if it appears to an enforcement authority that serious
interference with legitimate uses of the sea is occurring, or is likely to occur, in
its area as a result of—
(a)
any works for the carrying out of which a marine licence is or was
needed, or
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(b)
any substantial and unforeseen change in the state or position of any
such works.
(2)
The enforcement authority may issue a notice (an “emergency safety notice”)
to any person who is in control of the works to which the notice relates.

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
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(3)
By issuing an emergency safety notice to a person, the enforcement authority
imposes on that person such requirements as are prescribed in the notice with
respect to any of the matters specified in subsection (4).
(4)
Those matters are—
(a)
the provision of lights, signals or other aids to navigation;
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(b)
the stationing of guard ships.
(5)
An emergency safety notice (in addition to specifying the requirements which
it imposes)—
(a)
must state the enforcement authority’s grounds for believing that
serious interference with legitimate uses of the sea is occurring or is
10
likely to occur,
(b)
must state the date and time from which the requirements are to take
effect (which may be a time on the date of the notice but must allow a
period for compliance which is reasonable in all the circumstances of
the case), and
15
(c)
may require the person to take such steps as the authority considers
appropriate to ensure that compliance with the requirements takes
place safely.
105
Further provision as to emergency safety notices
(1)
An emergency safety notice issued by an enforcement authority must be
20
served on each of the following—
(a)
if a marine licence has been granted authorising the carrying out of the
works, the licensee,
(b)
if there is in effect a stop notice which relates to the works, any person
on whom the stop notice was served.
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(2)
An enforcement authority may by a further notice—
(a)
revoke an emergency safety notice;
(b)
vary an emergency safety notice so as to substitute a later date for the
date specified in accordance with section 104(5)(b).
(3)
A person who fails to comply with an emergency safety notice commits an
30
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.
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Other powers
106
Power to take remedial action
(1)
This section applies if it appears to the appropriate licensing authority for an
area that a licensable marine activity has been carried on in its area otherwise
than under a licence and in accordance with its conditions.
40
(2)
The authority may carry out any works that appear to it to be necessary or
expedient for any one or more of the following purposes—
(a)
protecting the environment;

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
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(b)
protecting human health;
(c)
preventing interference with legitimate uses of the sea;
(d)
preventing or minimising, or remedying or mitigating the effects of,
any harm or interference falling within subsection (3);
(e)
restoring (whether in whole or in part) the condition of any place
5
affected by any such harm or interference to the condition, or a
condition reasonably similar to the condition, in which the place would
have been had the harm or interference not occurred.
(3)
The harm or interference mentioned in subsection (2)(d) and (e) is any of the
following which has been, is being, or is likely to be, caused by the carrying on
10
of the licensable marine activity—
(a)
harm to the environment;
(b)
harm to human health;
(c)
interference with legitimate uses of the sea.
107
Power to test, and charge for testing, certain substances
15
(1)
A licensing authority may, at the request of any person, conduct tests for the
purpose of ascertaining the probable effect on the marine environment of using
any of the following substances—
(a)
any marine chemical treatment substance;
(b)
any marine oil treatment substance;
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(c)
any marine surface fouling cleaner.
(2)
In this section—
“marine chemical treatment substance” means any substance used or
intended to be used for treating chemicals—
(a)
on the surface of the sea or of the sea bed;
25
(b)
in the case of a wash-off substance, on any surface of a marine
structure;
“marine oil treatment substance” means any substance used or intended
to be used for treating oil on the surface of the sea;
“marine surface fouling cleaner” means any substance used or intended
30
to be used for removing surface fouling matter—
(a)
from the surface of the sea or of the sea bed;
(b)
in the case of a wash-off substance, from any surface of a marine
structure or vessel at times when the structure or vessel is in the
sea or on the sea bed;
35
“surface fouling matter” means any fouling, and includes, in particular,—
(a)
any algae;
(b)
any surface oil or chemical residue;
“surface oil or chemical residue” means any residual matter on a surface
after the removal, or substantial removal, of any oil or chemical
40
(whether by natural processes, or by treatment, or in any other way);
“wash-off substance”, in relation to a marine structure or vessel, means
any substance which, if used on a surface of the marine structure or
vessel, will or might (whether in whole or to a significant extent)—
(a)
be removed from that surface, and
45
(b)
be deposited in the sea,
whether by natural processes, or by treatment, or in any other way.

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
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(3)
A licensing authority may recover any expenses reasonably incurred in
conducting any tests under subsection (1) from any person at whose request
those tests were conducted.
Appeals against notices under this Part
108
Appeals against notices
5
(1)
The appropriate licensing authority must by regulations make provision for
any person to whom a notice is issued under section 72, 90, 91, 102 or 104 to
appeal against that notice.
(2)
The regulations required by subsection (1) must come into force on the day on
which this Part comes into force.
10
(3)
Regulations under this section may include—
(a)
provision as to the procedure to be followed with respect to an appeal;
(b)
provision suspending the notice pending determination of the appeal;
(c)
provision as to the powers of any person to whom the appeal is made;
(d)
provision as to how any sum payable in pursuance of a decision of that
15
person is to be recoverable.
Offences: supplementary provision
109
General defence of due diligence
(1)
In any proceedings for an offence under this Part, it is a defence for the person
charged (“the defendant”) to prove that the defendant took all reasonable
20
precautions and exercised all due diligence to avoid the commission of the
offence.
(2)
The defence provided by subsection (1) is to be taken to be established if the
defendant—
(a)
acted under an employer’s instructions,
25
(b)
did not know and had no reason to suppose that the acts done
constituted a contravention of the provision in question, and
(c)
took all such steps as reasonably could be taken to ensure that no
offence would be committed.
(3)
The defence provided by subsection (1) is to be taken to be established if the
30
defendant—
(a)
acted in reliance on information supplied by another person,
(b)
did not know and had no reason to suppose that the information was
false or misleading, and
(c)
took all such steps as reasonably could be taken to ensure that no
35
offence would be committed.
(4)
Subsections (2) and (3) do not affect the generality of subsection (1).
(5)
If in any case the defence provided by subsection (1) involves the allegation
that the commission of the offence was due to—
(a)
an act or default of another person (other than the giving of instructions
40
to the defendant by an employer), or
(b)
reliance on information supplied by another person,

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the defendant is not, without leave of the court, entitled to rely on that defence
unless the requirement in subsection (6) is satisfied.
(6)
The requirement is that—
(a)
at least seven clear days before the hearing, and
(b)
if the defendant has previously appeared before a court in connection
5
with the alleged offence, within one month of the first such appearance,

the defendant has served on the prosecutor a notice giving such information
identifying or assisting in the identification of that other person as was then in
the defendant’s possession.
110
Offences: jurisdiction
10
Proceedings for an offence under this Part may be taken, and the offence may
for all incidental purposes be treated as having been committed, in any part of
the United Kingdom.
Application to the Crown
111
Application to the Crown
15
(1)
The provisions of this Part bind the Crown.

This is subject to the following provisions of this section.
(2)
No contravention by the Crown of any provision of this Part is to make the
Crown criminally liable; but the High Court or, in Scotland, the Court of
Session may, on the application of the appropriate licensing authority or any
20
other authority charged with enforcing that provision, declare unlawful any
act or omission of the Crown which constitutes such a contravention.
(3)
Despite subsection (2), the provisions of this Part apply to persons in the public
service of the Crown as they apply to other persons.
(4)
The Secretary of State may certify that it appears to the Secretary of State that,
25
as respects—
(a)
any Crown land specified in the certificate, and
(b)
any powers of entry so specified which are exercisable in relation to
that land,

it is necessary or expedient that, in the interests of national security, the powers
30
should not be exercisable in relation to the land.
(5)
If the Secretary of State issues a certificate under subsection (4), the powers
specified in the certificate are not exercisable in relation to the land so specified.
(6)
For the purposes of subsection (4) “Crown land” means land held or used by
or on behalf of the Crown.
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(7)
Nothing in this section is to be taken as in any way affecting Her Majesty in her
private capacity or in right of Her Duchy of Lancaster, or the Duke of Cornwall.
Consequential and transitional provision
112
Amendments and transitional provision
(1)
Schedule 8 (which makes minor and consequential amendments) has effect.
40

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary
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(2)
Schedule 9 (which makes transitional provision) has effect.
Interpretation
113
The appropriate licensing authority
(1)
This section has effect for determining who is the appropriate licensing
authority for any area (and any licensable marine activity carried on in that
5
area).
(2)
In relation to the Scottish offshore region, the appropriate licensing authority
is—
(a)
the Secretary of State, as respects anything done in the course of
carrying on an activity falling within subsection (3);
10
(b)
except as provided by paragraph (a), the Scottish Ministers.
(3)
The activities are—
(a)
any activity relating to a matter which is a reserved matter by virtue of
Section D2 (oil and gas) of Schedule 5 to the Scotland Act 1998 (c. 46)
(but see also section 77 above (this Part not to apply to certain oil and
15
gas etc activities));
(b)
any activity relating to a matter which is a reserved matter by virtue of
paragraph 9 in Part 1 of that Schedule (defence);
(c)
any activity falling within the subject matter of Part 6 of the Merchant
Shipping Act 1995 (c. 21) (pollution etc).
20
(4)
In relation to Wales and the Welsh inshore region, the appropriate licensing
authority is—
(a)
the Secretary of State, as respects anything done in the course of
carrying on an activity falling within subsection (5);
(b)
except as provided by paragraph (a), the Welsh Ministers.
25
(5)
The activities are—
(a)
any activity concerning or arising from the exploration for, or
production of, petroleum (but see also section 77 (this Part not to apply
to certain oil and gas etc activities));
(b)
any defence activity other than an excepted activity.
30

Subsection (9) supplements this subsection.
(6)
In relation to Northern Ireland and the Northern Ireland inshore region, the
appropriate licensing authority is—
(a)
the Secretary of State, as respects anything done in the course of
carrying on an activity falling within subsection (7);
35
(b)
except as provided by paragraph (a), the Department of the
Environment in Northern Ireland.
(7)
The activities are any activities which relate to a matter which is an excepted
matter by virtue of paragraph 4 of Schedule 2 to the Northern Ireland Act 1998
(c. 47) (defence of the realm etc).
40
(8)
In relation to any area not mentioned in subsection (2), (4) or (6), the
appropriate licensing authority is the Secretary of State.
(9)
In subsection (5)—
“defence activity” means any activity relating to—

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(a)
the defence of the realm;
(b)
the naval, military or air forces of the Crown, including reserve
forces;
(c)
visiting forces;
(d)
international headquarters and defence organisations;
5
(e)
trading with the enemy and enemy property;
“excepted activity” means the exercise of civil defence functions by any
person otherwise than as a member of—
(a)
any force or organisation referred to in paragraph (b) to (d) of
the definition of “defence activity”, or
10
(b)
any other force or organisation established or maintained for
the purposes of, or for purposes connected with, the defence of
the realm;
“petroleum” has the same meaning as in Part 3 of the Petroleum Act 1998
(c. 17) (see section 28(1) of that Act).
15
114
Meaning of “enforcement authority”
(1)
This section has effect for determining who is an enforcement authority for any
area.
(2)
For the purposes of sections 90 to 97 and 102 to 105 (and any other provisions
of this Part so far as relating to those sections) the appropriate licensing
20
authority for any area is an enforcement authority for that area.
(3)
For the purposes of sections 90, 92 (so far as relating to section 90) and 102 to
105 (and any other provisions of this Part (except sections 91 and 93 to 97) so
far as relating to those sections) each of the following persons is also an
enforcement authority—
25
(a)
in relation to the relevant enforcement area (within the meaning of
section 230), any marine enforcement officer (as defined in section 229);
(b)
in relation to the relevant enforcement area (within the meaning of
section 234), any person appointed under section 234;
(c)
in relation to the relevant enforcement area (within the meaning of
30
section 235), any person appointed under section 235;
(d)
in relation to the Scottish offshore region, any person appointed under
section 236.
(4)
A person is an enforcement authority by virtue of subsection (3) (so far as
relating to the sections specified in that subsection) only to the extent that the
35
person may exercise powers for the purposes of enforcing this Part.
115
Interpretation of this Part
(1)
In this Part—
“appropriate enforcement authority”, in the case of any area and any
provision of this Part, means any authority which is an enforcement
40
authority for that area for the purposes of that provision;
“the appropriate licensing authority” has the meaning given by section
113;
“British aircraft” means an aircraft registered in the United Kingdom;