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 5 — Nature conservation
Chapter 1 — Marine conservation zones
92

Orders for protection of MCZs etc: Wales
134
Orders for protection of MCZs in Wales
(1)
The Welsh Ministers may make one or more orders for the purpose of
furthering the conservation objectives stated for an MCZ in Wales.
(2)
An order under this section may be made so as to apply to any area in Wales.
5
(3)
Subsections (3), (4) and (7) to (9) of section 129 apply in relation to an order
under this section as they apply in relation to a byelaw under that section.
(4)
An order under this section may provide for the Welsh Ministers to issue
permits authorising anything which would, apart from such a permit, be
unlawful under the order.
10
(5)
The Welsh Ministers may attach to a permit under subsection (4) any condition
which the Welsh Ministers think appropriate to attach to that permit.
(6)
An order under this section may be made in respect of more than one MCZ;
and in relation to any order so made any reference in this section (or in section
129 as applied by this section) to an MCZ is a reference to any or all of the
15
MCZs in respect of which the order is made.
135
Consultation etc regarding orders under section 134
(1)
Before making an order under section 134, the Welsh Ministers must consult—
(a)
the Secretary of State, and
(b)
any other person whom they think fit to consult.
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(2)
The Welsh Ministers must publish notice of the making of an order under
section 134.
(3)
The notice under subsection (2) must—
(a)
be published in such manner as the Welsh Ministers think is most likely
to bring the order to the attention of any persons who are likely to be
25
affected by the making of it;
(b)
give an address at which a copy of the order may be inspected.
(4)
Where the Welsh Ministers think that there is an urgent need to make an order
under section 134 in order to protect an MCZ—
(a)
subsection (1) does not apply, and
30
(b)
the notice under subsection (2) must also state that any person affected
by the making of the order may make representations to the Welsh
Ministers.
136
Interim orders
(1)
The Welsh Ministers may make one or more orders for the purpose of
35
protecting any feature in an area in Wales if they think—
(a)
that there are or may be reasons to consider whether to designate the
area as an MCZ, and
(b)
that there is an urgent need to protect the feature.
(2)
In this Chapter “interim order” means an order under subsection (1).
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Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
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(3)
An interim order must contain a description of the boundaries of the area to
which it applies (which must be no greater than is necessary for the purpose of
protecting the feature in question).
(4)
Subsections (2) to (5) of section 134 apply to an interim order as they apply to
an order under that section, except that any reference to an MCZ is to be read
5
as a reference to the area to which the interim order applies.
(5)
An interim order—
(a)
comes into force on a date specified in the order, and
(b)
remains in force (unless revoked) for such period, not exceeding 12
months, as is specified in the order.
10
(6)
The Welsh Ministers must publish notice of the making of an interim order.
(7)
The notice under subsection (6) must—
(a)
be published in such manner as the Welsh Ministers think is most likely
to bring the order to the attention of any persons who are likely to be
affected by the making of it;
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(b)
give an address at which a copy of the order may be inspected;
(c)
state that any person affected by the making of the order may make
representations to the Welsh Ministers.
(8)
The Welsh Ministers must keep under review the need for an interim order to
remain in force.
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(9)
The Welsh Ministers may by further order extend the period for which an
interim order remains in force.
(10)
In this section “feature” means any flora, fauna, habitat or feature which could
be a protected feature if the area in question were designated as an MCZ.
137
Further provision as to orders made under section 134 or 136
25
(1)
This section applies to any order made under section 134 or 136.
(2)
The Welsh Ministers must send a copy of any order to which this section
applies to the Secretary of State.
(3)
The Welsh Ministers must—
(a)
make a copy of any order to which this section applies available for
30
inspection at such place as they think fit for that purpose at all
reasonable hours without payment;
(b)
provide a copy of any such order to any person who requests one.
(4)
Subject to subsection (5), an order to which this section applies may make such
provision amending, modifying or excluding any statutory provision of local
35
application which has effect in the area to which the order relates as the Welsh
Ministers think is necessary or expedient in consequence of the order.
(5)
An order to which this section applies may not amend, modify or exclude any
statutory provision of local application which was made by the Secretary of
State unless the Secretary of State consents.
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(6)
An order to which this section applies may be amended or revoked by a further
order.
(7)
In this section “statutory provision” means—

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
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(a)
provision of an Act of Parliament, or
(b)
provision of an instrument made under an Act of Parliament.
Hearings
138
Hearings by Secretary of State or Welsh Ministers
(1)
This section applies where the Secretary of State has the function of—
5
(a)
deciding (under section 130(8)) whether to confirm a byelaw made
under section 129;
(b)
deciding (under section 131(5)) whether to revoke an emergency
byelaw;
(c)
deciding (under section 132(8)) whether to revoke an interim byelaw.
10
(2)
This section also applies where the Welsh Ministers have the function of—
(a)
deciding whether to make an order under section 134;
(b)
deciding whether to make an interim order under section 136(1).
(3)
The Secretary of State or (as the case may be) the Welsh Ministers may, before
making that decision, give to any person the opportunity of—
15
(a)
appearing before and being heard by a person appointed for that
purpose;
(b)
providing written representations to such a person.
(4)
The Secretary of State or (as the case may be) the Welsh Ministers may make
regulations providing for the procedure to be followed (including decisions as
20
to costs) at hearings held under subsection (3).
(5)
A person appointed under subsection (3) must make a report to the Secretary
of State or (as the case may be) the Welsh Ministers of any oral or written
representations made under that subsection.
Offences
25
139
Offence of contravening byelaws or orders
(1)
It is an offence for a person to contravene—
(a)
any byelaw made under section 129 or 132(1);
(b)
any order made under section 134 or 136(1).
(2)
A person who is guilty of an offence under this section is liable on summary
30
conviction to a fine not exceeding level 5 on the standard scale.
(3)
In this section “contravene” includes fail to comply.
(4)
Proceedings for an offence under this section may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
part of England and Wales.
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140
Offence of damaging etc protected features of MCZs
(1)
A person is guilty of an offence under this section if—
(a)
the person without lawful excuse does a prohibited act,

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Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
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(b)
at the time of doing that act, the person knows, or ought to have known,
that the feature to which the act relates is in, or forms part of, an MCZ,
and
(c)
the act has significantly hindered, or may significantly hinder, the
achievement of the conservation objectives stated for the MCZ.
5
(2)
For the purposes of subsection (1), a person does a prohibited act if the
person—
(a)
intentionally or recklessly kills or injures any animal in an MCZ which
is a protected feature of that MCZ,
(b)
intentionally picks or collects, or intentionally or recklessly cuts,
10
uproots or destroys, any plant in an MCZ which is a protected feature
of that MCZ,
(c)
intentionally or recklessly takes anything from an MCZ which is, or
forms part of, a protected feature of that MCZ, or
(d)
intentionally or recklessly destroys or damages any habitat or feature
15
which is a protected feature of an MCZ.
(3)
For the purposes of determining whether anything done by a person in relation
to a protected feature is a prohibited act for the purposes of subsection (1), it is
immaterial whether the person knew, or ought to have known, that the feature
was a protected feature.
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(4)
A person who is guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding £50,000;
(b)
on conviction on indictment, to a fine.
(5)
In determining the amount of any fine to be imposed on a person convicted of
an offence under this section, the court must in particular have regard to any
25
financial benefit which has accrued or appears likely to accrue to the person in
consequence of the offence.
(6)
Proceedings for an offence under this section may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
part of the United Kingdom.
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141
Exceptions to offences under section 139 or 140
(1)
A person is not guilty of an offence under section 139 or 140 if the act which is
alleged to constitute the offence—
(a)
was done in accordance with section 125(2) by a public authority;
(b)
was expressly authorised by an authorisation granted in accordance
35
with section 126, or was necessarily incidental to such an act;
(c)
was done in accordance with—
(i)
a permit issued under section 129(5) or 134(4), or
(ii)
a permit issued by the appropriate authority;
(d)
was necessary in the interests of national security or the prevention or
40
detection of crime, or was necessary for securing public health;
(e)
was necessary for the purpose of securing the safety of any vessel,
aircraft or marine installation;
(f)
was done for the purpose of saving life.
(2)
Subsection (1)(e) does not apply where the necessity was due to the fault of the
45
person or of some other person acting under the person’s direction or control.

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Chapter 1 — Marine conservation zones
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(3)
A person is not guilty of an offence under section 139 by reason of doing
anything that is an offence under section 140.
(4)
It is a defence for a person who is charged with an offence under section 140 to
show that—
(a)
the act which is alleged to constitute the offence was—
5
(i)
an act done for the purpose of, and in the course of, sea fishing,
or
(ii)
an act done in connection with such an act,

and
(b)
the effect of the act on the protected feature in question could not
10
reasonably have been avoided.
(5)
Until the coming into force of the first Order in Council made under section 41
(the exclusive economic zone), nothing in section 140 applies to anything done
in relation to an MCZ lying beyond the seaward limits of the territorial sea by
a person on a third country vessel.
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(6)
In this section—
“act” includes omission;
“third country vessel” means a vessel which—
(a)
is flying the flag of, or is registered in, any State or territory
(other than Gibraltar) which is not a member State, and
20
(b)
is not registered in a member State.
Fixed monetary penalties
142
Fixed monetary penalties
(1)
The appropriate authority for any area (other than the Scottish offshore region)
may by order make provision to confer on any enforcement authority for that
25
area the power by notice to impose a fixed monetary penalty on a person in
relation to an offence under section 139.
(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.
30
(3)
For the purposes of this Chapter 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 level 1 on the standard scale.
(5)
In this section “prescribed” means prescribed in an order made under this
35
section.
143
Fixed monetary penalties: procedure
(1)
Provision under section 142 must secure the results in subsection (2).
(2)
Those results are that—
(a)
where the enforcement authority proposes to impose a fixed monetary
40
penalty on a person, the authority must serve on that person a notice of

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
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what is proposed (a “notice of intent”) which complies with subsection
(3),
(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
5
penalty),
(c)
if the person does not so discharge liability—
(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
10
(ii)
the enforcement authority must at the end of the period for
making representations and objections decide whether to
impose the fixed monetary penalty,
(d)
where the enforcement authority decides to impose the fixed monetary
penalty, the notice imposing it (“the final notice”) complies with
15
subsection (5), and
(e)
the person on whom a fixed monetary penalty is imposed may appeal
against the decision to impose it.
(3)
To comply with this subsection the notice of intent must include information
as to—
20
(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,
(d)
the circumstances in which the enforcement authority may not impose
the fixed monetary penalty,
25
(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
(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
30
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
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
35
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
enforcement authority may not decide to impose a fixed monetary
penalty.
40
(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,
(b)
how payment may be made,
(c)
the period within which payment must be made,
45
(d)
any early payment discounts or late payment penalties,
(e)
rights of appeal, and
(f)
the consequences of non-payment.

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Chapter 1 — Marine conservation zones
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(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;
5
(c)
that the decision was unreasonable.
(7)
In this section “prescribed” means prescribed in an order made under section
142.
144
Further provision about fixed monetary penalties

Schedule 10 (which makes further provision about fixed monetary penalties)
10
has effect.
Miscellaneous and supplemental
145
Application to the Crown
(1)
This Chapter is binding on the Crown and applies in relation to any Crown
land as it applies in relation to any other land.
15

This is subject to subsection (2).
(2)
No contravention by the Crown of any provision of this Chapter 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 authority or any other
authority charged with enforcing that provision, declare unlawful any act or
20
omission of the Crown which constitutes such a contravention.
(3)
Despite subsection (2), the provisions of this Chapter apply to persons in the
public service of the Crown as they apply to other persons.
(4)
For the purposes of this section “Crown land” means land an interest in
which—
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(a)
belongs to Her Majesty in right of the Crown or in right of Her private
estates,
(b)
belongs to Her Majesty in right of the Duchy of Lancaster,
(c)
belongs to the Duchy of Cornwall, or
(d)
belongs to a government department or is held in trust for Her Majesty
30
for the purposes of a government department.
(5)
In this section references to Her Majesty’s private estates are to be construed in
accordance with section 1 of the Crown Private Estates Act 1862 (c. 37).
146
Consequential and transitional provision
(1)
Schedule 11 (which makes consequential amendments) has effect.
35
(2)
Schedule 12 (which makes transitional provision) has effect.
147
Interpretation of this Chapter
(1)
In this Chapter—