Clause 58: Decisions affected by marine policy documents

186.     This clause sets out the effect of “the appropriate marine policy documents” on “authorisation or enforcement decisions”. “The appropriate marine policy documents” means the Marine Policy Statement and relevant marine plans. Clauses 59 and 60 set out the rules for determining whether an MPS or plan applies to a particular decision.

187.     Subsection (1) provides that all authorisation and enforcement decisions must be taken in accordance with any relevant MPS and plans, unless relevant considerations indicate otherwise. Subsection (2) requires that public authorities give their reasons if they make decisions which do not follow the MPS or plans.

188.     Subsection (3) requires that public authorities have regard to any relevant MPS or plans when taking any decision which relates to a function capable of affecting the UK marine area (other than an authorisation or enforcement decision).

189.     Subsection (4) defines “authorisation or enforcement decisions”. These decisions relate to the licensing (or other authorisation) of particular activities which affect, or might affect, the whole or any part of the UK marine area, the conditions attached to those authorisations, and the enforcement action to be taken with a view to securing that any such activities are carried out only under a licence, and in accordance with any conditions attached to the licence, and not in breach of any prohibition or restriction. The closing words provide that decisions under the Planning Act 2008 on applications for development consent for nationally significant infrastructure projects are not “authorisation or enforcement decisions”. As such, they are decisions within the scope of subsection (3), which requires public authorities to have regard to marine policy documents when making decisions.

190.     Subsection (5) inserts a new sub-paragraph into section 104(2) of the Planning Act 2008, requiring the Infrastructure Planning Commission (established under that Act) to have regard to “the appropriate marine policy documents” when making decisions on applications for nationally-significant infrastructure projects.

191.     Subsection (6) includes some further definitions of terms used in this clause.

Clause 59: The appropriate marine policy documents

192.     This clause sets out the rules for determining whether an MPS or plan applies to a particular decision.

193.     Subsections (3) and (4) relate to the effect of marine plans on decisions. The effect of subsection (3) is that a marine plan applies to any decision which relates to the area covered by the marine plan, unless subsection (4) applies. The effect of subsection (4) is that a marine plan for an area in the Northern Ireland, Scottish or Welsh offshore region, or the Welsh inshore region, is not an appropriate marine policy document for decisions relating to the exercise of retained functions (that is, functions which are not devolved) unless the marine plan states that

• it includes provision for retained functions;

• was adopted with the agreement of the Secretary of State; and

• was prepared and adopted whilst an MPS governed planning for the part of the marine area to which the plan relates.

194.     Subsection (5) relates to the effect of an MPS on decisions. Since an MPS will always have been adopted by the Secretary of State, it will be relevant to all decisions relating to the English inshore or offshore region, and those relating to the exercise of retained functions in the other marine planning regions. An MPS will also be relevant to decisions relating to the exercise of devolved functions in the other marine planning regions if the marine plan authority for the region has adopted the MPS in its capacity as a policy authority.

195.     An MPS adopted by the Scottish Ministers or Department of the Environment in Northern Ireland will also be relevant to decisions relating to their respective inshore regions, even though there are no “marine plan authorities” for those regions. For this reason, subsection (6) provides that, for the purposes of paragraph (5)(f) above, the Scottish Ministers and DoENI are to be treated as the marine plan authorities for the Scottish inshore region and the NI inshore region respectively.

196.     Subsection (7) defines some of the terms used in this section.

Clause 60: Meaning of “retained functions” etc.

197.     This clause provides that, unless a function fits into one of the three classes set out in sub-clause (1)(a) to (e), it is a retained function.

198.     Subsections (1)(a) - (c) and subsection (2) introduce and define “devolved ministerial functions”. This includes all functions which are exercisable by the devolved Ministers (or Northern Ireland departments), including functions which are exercisable concurrently or jointly with the Secretary of State insofar as they are in fact exercised by the devolved ministers. (Insofar as these concurrent or joint functions are exercised by the Secretary of State, they remain retained.)

199.     Subsection (1)(d) and subsections (3) and (4) introduce and define “secondary devolved functions”. This class covers functions exercised in relation to each devolved marine planning region by public authorities other than the policy authorities or other ‘government-level’ bodies (hence secondary). These public authorities are collectively labelled “non-departmental public authorities”.

200.     The definition of “secondary devolved functions” is slightly different for each devolved administration, reflecting the variations in the devolution settlements (sub-clause (4)). In particular, it needs to take account of executively devolved functions, where the policy and power to exercise a function may have been devolved but the relevant devolved legislature does not have the power to legislate in respect of it. For example, Scottish Ministers have the power under the Marine and Coastal Access Bill [HL] to prepare marine plans for the Scottish offshore region, but the Scottish Parliament cannot legislate for marine planning in the offshore area.

201.     When a non-departmental public authority is carrying out functions under the oversight or control of the relevant devolved Ministers (or NI department), it becomes a “Scottish”, “Northern Ireland” or “Welsh non-departmental public authority” (defined in sub-sections (5) and (10)). For example, the Environment Agency has certain functions in relation to the Welsh marine regions in relation to matters which are devolved in Wales. When carrying out these functions it follows Welsh devolved policy and the directions of the Welsh Ministers, and so would be a “Welsh non-departmental public authority”.

202.     “Secondary devolved functions” are therefore defined for each region by reference to:

• Functions carried out under the control of the devolved administration (whether or not the relevant legislature would have competence); and

• Functions relating to matters which are within the competence of the relevant devolved legislature.

203.     The final class of functions which are not retained functions are “relevant ancillary functions” (subsection 1(e) and defined in subsection (5))

204.     This final class covers functions exercised by non-departmental public authorities in relation to other devolved functions. These are predominantly advisory functions (for example many public authorities have functions of giving advice to ministers and other public authorities on how to carry out their functions). This drafting ensures that any such advice is given on the same basis as the actual substantive function. To use the example above, if the Welsh Ministers had not adopted the MPS, then any advice given to them by the Environment Agency about matters which are devolved in Wales would also not be bound by the MPS.

205.     However, neither secondary devolved functions nor ancillary functions can be considered devolved if the UK government still has substantive functions in relation to them (subsection (7)). Where the UK government only has relatively minor functions (for example giving consent to, or being consulted about, the exercise of a devolved function - subsections (8) and (9)) then that is not sufficient to stop it being devolved - insofar as it is exercised by the devolved public authority. (The UK function of giving that consent, or responding to the consultation is of course not devolved.)

206.     Subsection (10) contains additional definitions of some of the terms used in this clause and in clause 59.

Monitoring and reporting

Clause 61: Monitoring of, and periodical reporting on, implementation

207.     Subsection (1) sets out in summary the two duties imposed on marine plan authorities by this clause. First, each marine plan authority is to monitor and report on the effects and effectiveness of its existing plans, and second, it is to report every six years until 2030 on the way it has used, and intends to use, its marine planning powers.

208.     Subsections (2) and (3) set out the scope of the duty of marine plan authorities to keep the effects, and effectiveness, of marine plans under review. Such reports must also cover any progress towards achieving any objectives set out for that region in the MPS.

209.     Subsections (4) to (8) require marine plan authorities to report on this review at least every three years after each plan is adopted, and decide after each report whether or not the plan needs to be amended or replaced. Reports under this sub-section must be laid before the appropriate legislature.

210.     Subsection (9) makes clear that “replacing” a plan means preparing and adopting a new plan and withdrawing the existing one.

211.     Subsections (10) to (13) impose the second reporting duty, requiring marine plan authorities to report at least every six years until 2030 on the marine plans they have prepared, and their intentions as to the amendment of existing plans or preparation of additional plans. Again, these reports must be laid before the appropriate legislature.

212.     Subsection (14) defines the appropriate legislatures.

Chapter 5: Miscellaneous and General Provisions

Validity of documents under this part

Clause 62: Validity of marine policy statements and marine plans

213.     This clause sets out how people may challenge the content of marine policy documents (or amendments to them) in court. Subsection (3) provides that such challenges may only be brought in accordance with this clause.

214.     Subsection (4) provides that the only grounds for challenge to a “relevant document” are that the document is not within the appropriate powers, or that a procedural requirement has not been complied with (see subsection (6) for definitions of “appropriate powers” and “procedural requirements”). Only a person aggrieved by a relevant document may bring a challenge against it.

215.     Subsection (5) requires that any such challenges are brought within 6 weeks of the adoption of the relevant document (except challenges brought before the Court of Session in Scotland).

216.     Subsection (6) identifies the appropriate court for bringing challenges in different parts of the UK, and defines “appropriate powers” and “procedural requirements”.

Clause 63: Powers of the court on an application under section 62

217.     This clause sets out the powers of a court hearing a challenge to the validity of a marine policy document.

218.     Subsection (2) enables a court to make an interim order, suspending the operation of all or part of a document until the legal proceedings are over.

219.     Subsection (3) sets out the conditions which must be satisfied before the court can grant any of the remedies set out in subsection (4). The court must be satisfied either that the marine plan authority (or its delegate) acted outside or beyond the relevant powers in relation to the document, or that the applicant has been substantially prejudiced by a failure to meet a procedural requirement.

220.     If the court is satisfied that one of the conditions in subsection (3) has been met, subsection (4) enables the court either to quash the document or remit it (in effect, send it back) to a person or body involved in its preparation, adoption or publication.

221.     Subsections (5) and (6) then enable the court to give directions relating to whether the document should be treated as adopted or published and to procedural or other steps which should be taken to ensure that whatever was wrong with the document is put right, without necessarily having to start the whole preparation process again from the beginning.

222.     Subsection (7) states that the court is able to quash or remit only part of a relevant document, or the whole document.

223.     Subsection (8) refers back to the definitions used in clause 62.

Interpretation and Crown application

Clause 64: Interpretation and Crown application of this Part

224.     This clause sets out how certain terms used within Part 3 of the Bill should be interpreted and states that the Crown is bound by the planning provisions.

PART 4: MARINE LICENSING

Chapter 1: Marine Licences

Clauses 65 & 66: Requirement for licence; Licensable marine activities

225.     Anyone undertaking an activity mentioned in clause 66 will need to obtain a licence from the appropriate licensing authority.

226.     The appropriate licensing authority for each part of the UK marine licensing area is specified in clause 113.

227.     The list of licensable activities is similar to that covered by the Bill’s predecessor, Part II of the Food and Environment Protection Act 1985 (“FEPA”). One of the main differences is dredging. Under FEPA only some forms of dredging were licensable, namely those that involved the removal and dumping of sediment elsewhere at sea. For example, hydrodynamic and plough dredging that involve the use of water jets or ploughs, respectively, to move sediment along the sea-bed were not licensable. Aggregate dredging which involves the removal of sediment but for use on land was also not licensed under FEPA. Item 9 of subsection (1), as read with subsection (2)(a) make all forms of dredging licensable under this Part. Clause 75 provides an exemption from the need for a marine licence for dredging already authorised under a Harbour Order or other local Act.

228.     The list of licensable activities is self-explanatory. In summary:

• All vessels, aircraft or structures, regardless of their country of origin, will need a licence to deposit, scuttle or incinerate any object or substance within the UK marine licensing area;

• All vessels, aircraft or structures, regardless of their country of origin, where it is their intention to engage in such an activity anywhere at sea, will need a licence to load or begin towing in the UK marine licensing area; and

• British vessels, aircraft or structures will need a licence to deposit, scuttle or incinerate any object or substance anywhere at sea. British vessels, aircraft or structures are defined in clause 115.

229.     By virtue of clause 85, it is an offence to engage in a licensable activity without the requisite licence or in a way that breaches the conditions outlined in that licence.

230.     The list of activities that need a licence can be amended by order. Each devolved administration can produce such an order for its territory. This order making power cannot be delegated to another body under the powers given in clause 98.

Clauses 67 & 68: Applications; Notice of applications

231.     The licensing authority, by virtue of these clauses, can specify in what form an application for a marine licence should be submitted and may charge an application fee. The licensing authority may vary these requirements for different cases. Fees will be set according to regulations made by the licensing authority.

232.     The licensing authority may request any supplementary information or require any investigations it thinks are necessary to be able properly to assess an application. If, as part of the assessment of the application the authority undertakes additional investigations or tests, then it will be able to recover the costs from the applicant.

233.     If an applicant fails to provide any such information, or fails to pay the associated fee, then the licensing authority can refuse to consider, or to continue assessing, an application.

234.     On receipt of an application, the licensing authority must, subject to clause 68(7), secure that any application for a marine licence is advertised in a manner that will bring it to the attention of those likely to be interested in it. It can either advertise the application itself or ask the applicant to do so on its behalf. It must also notify, or require the applicant to notify, any local authority in whose area the activity is proposed (wholly or in part) to be carried out (whether or not the local authority is a person likely to be interested in the application for the purposes of subsection (2)). Subsections (7) and (8) give the licensing authority the discretion to lift the requirement to publicise or give notice if it thinks that a particular application should not be published or notified. This would be the case, for example, where it was clear to the licensing authority that the operation under consideration would have no impact on others and providing notice would serve no function other than to delay a decision on the application and increase the costs of the project unnecessarily. Clause 68(7)(b) and (8)(b) makes provision for the specific case where the Secretary of State decides to do so would be prejudicial to the interests of national security.

235.     The licensing authority may not assess an application if publication or notice has not be given where it was required to have been; it may also refuse to proceed if costs of publishing or giving notice due to the licensing authority are outstanding.

Clauses 69 & 70: Determination of applications; Inquiries

236.     When determining an application for a marine licence the licensing authority must have regard to:

a)     the need to protect the environment;

b)     the need to protect human health;

c)     the need to prevent interference with legitimate uses of the sea; and

d)     such other matters as the authority thinks relevant.

237.     The reference to the “environment” includes both the local and global environment; the natural environment; and, by virtue of clause 115(2), any site of historic or archaeological interest. The natural environment includes the physical, chemical and biological state of the sea, the sea-bed and the sea-shore, and the ecosystems within it, or those that are directly affected by an activity, whether within the marine licensing area or otherwise.

238.     Legitimate uses of the sea includes but are not limited to: navigation (including considerations of navigational safety); fishing; mineral extraction; and amenity use.

239.     During its assessment of an application the licensing authority may actively seek views and comments from expert bodies on matters where they have expertise relevant to the application. It must also take into account any comments it receives from other interested parties. The marine licensing authority may hold an inquiry to determine the application.

240.     A licensing authority may set out further details in regulations as regards the procedure for applications and how it grants them.

Clause 71: Licences

241.     The marine licensing authority, by virtue of this clause, may impose conditions on any licence it grants. Examples of the sorts of conditions that may be imposed are given in subsection (3); these are very similar in effect to those that could be imposed by the Bill’s predecessor, FEPA. However, under FEPA, conditions could only be imposed that governed the original carrying out of an activity. Subsection (2)(b) allows the licensing authority to attach conditions that will govern the behaviour of the licensee after the carrying out of the authorised activities. For example, under FEPA a developer would obtain a licence to build a jetty and the conditions attached to the licence would only cover the activity of building that jetty. Under the Bill, the same licence could also include conditions governing the use of the jetty once built and also how the jetty should be dismantled and removed from the sea once its active life is over.

242.     In the particular case of licensing the construction, alteration or improvement of works, licence conditions can bind persons other than those to whom the licence is given. The persons who may be bound are those that own, occupy or enjoy the use of the works. There is a similar provision in the Coast Protection Act 1949 (“CPA”) though not in FEPA, as the consequences of using the works primarily relate to obstructing navigation (the subject matter of the CPA). Given that the Bill subsumes the CPA’s navigational remit under the interpretation of “interference with legitimate uses of the sea”, the Bill also includes this provision. Such persons can commit an offence in failing to comply with the condition in the circumstances outlined in clause 85.

Clause 72: Variation, suspension, revocation and transfer

243.     The licensing authority may vary, suspend or revoke a licence in certain cases by notice. These can include, for example, where there has been a breach of conditions or where there has been a change in circumstances relating to the environment or human health. A licence will not be suspended for more than 18 months.

244.     On receipt of an application from the licensee, the licensing authority can transfer a licence from one named person to another. Licensees themselves cannot transfer their licences.

245.     Where a licensing authority has delegated its function to another organisation (see clause 98), any licences issued before the delegation can be varied, revoked or transferred by the new body as if it had issued the original licence.

Clause 73: Appeals against licensing decisions

246.     Each appropriate licensing authority is under an obligation to establish a mechanism through which an applicant for a marine licence can appeal against its decision to refuse to grant a licence or against any of the conditions attached to one.

Chapter 2: Exemptions and Special Cases

Exemptions

Clauses 74 & 75: Exemptions specified by order; Exemptions for certain dredging etc activities

247.     The licensing authority can, by order, either exempt activities from the need for a licence completely, or to specify conditions which, if met, will mean the activity can be exempted from the need for a licence. Examples of the sorts of activity which might be covered by such exemptions are the routine re-distribution of sand along a beach or minor repairs to seawalls. Conditions can include the requirement for approval prior to the activity proceeding, but without the need for a licence. This order-making power cannot be delegated to another body under the powers given in clause 98.

248.     In deciding whether to make an order, the licensing authority must have regard to the need to protect the environment, the need to protect human health, the need to prevent interference with legitimate uses of the sea, and such other matters as the authority thinks relevant.

249.     Where a particular dredging operation or a deposit of dredged materials is already licensed under any of the legislation in subsection (3) of clause 75, that particular operation will not need an additional marine licence.

Clause 76: Dredging in the Scottish zone

250.     Marine licensing as outlined in this Part does not apply to any dredging done, in the exercise of the functions in subsection (2), in the Scottish zone for the purpose of extracting minerals.