Marine And Coastal Access Bill [HL] - continued          House of Commons

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Clause 77: Oil and gas activities and carbon dioxide storage

251.     This clause exempts from the need to obtain a marine licence certain activities licensable under the Petroleum Act 1998 or the Energy Act 2008. The exempted activities are listed in subsection (1). Subsections (3) and (4) place geographical restrictions on the exemption.

Special provisions in certain cases

Clause 78: Special procedure for applications relating to harbour works

252.     This clause takes effect where a marine licence is required and an application for a harbour order (for example in respect of certain harbour works) has been, or is likely to be, made.

253.     In such cases the authority granting, or likely to grant, the harbour order, in conjunction with the marine licensing authority, if it is different body, can issue a notice to the applicant stating that both the application for a harbour order and the application will be subject to the same administrative procedure. That procedure will secure that the two related applications for the two different permissions are dealt with in parallel at the same time rather than in sequence. In cases where only one of the applications has been received, that application will be placed on hold until the other application is received.

254.     When both applications have been received the process that the applications will go through is that which is to be determined by the Secretary of State in any order made under subsection (6). That order may amend the process as outlined in the Harbours Act 1964 and disapply any provision of the marine licensing process.

Clause 79: Special procedure for applications relating to certain electricity works

255.     This clause takes effect where both a marine licence and consent under section 36 of the Electricity Act 1989 (in relation to offshore generating stations) are required.

256.     In such cases the authority to determine consent under section 36 of the Electricity Act, in conjunction with the marine licensing authority, if it is different body, can issue a notice to the applicant stating that both the application for a section 36 consent and the application for a marine licence will be subject to the same administrative procedure. That procedure will secure that the two related applications for the two different permissions are dealt with in parallel at the same time rather than in sequence. In cases where only one of the applications has been received, that application will be placed on hold until the other application is received.

257.     When both applications have been received the process that the applications will go through is that which is to be determined by the Secretary of State in any order made under subsection (6). That order may amend the process as outlined in the Electricity Act 1989 and disapply any provision of the marine licensing process.

Clause 80: Electronic communications apparatus

258.     This clause removes the obligation for an operator to apply to the Secretary of State for a licence under the electronic communications code (“the Code”), as set out in Schedule 2 to the Telecommunications Act 1984. The licensing of activities in connection with submarine cable-laying or the removing of any submarine cable is licensable under the marine licensing regime outlined in the Bill instead.

259.     The licensing authority is prevented from granting a licence to a submarine cable-laying operation registered under the Code unless it is satisfied that adequate compensation arrangements for loss or damage suffered in consequence of the cable laying or removal have been made.

260.     This in no other way affects the rights granted to operators by other parts of the Code.

Clause 81: Submarine cables on the continental shelf

261.     This clause restricts the marine licensing regime to the laying or maintaining of certain submarine cables. The effect is that cables that relate to any of the activities given in subsection (5) are fully licensable under the Marine and Coastal Access Bill [HL] anywhere in the UK marine licensing area. Cables that are not used for any of the purposes in subsection (5) fall into three categories. Firstly, those that are entirely within the “inshore stretch”, as defined by subsection (4), are fully licensable. Secondly, those that are partly, but not wholly, in the “inshore stretch” must be granted a marine licence but the licensing authority can attach conditions to that part of the cable lying within the “inshore stretch”. And thirdly, those that are wholly in the “offshore stretch”, as defined by subsection (4) are not in any way subject to marine licence.

Clause 82: Structures in, over or under a main river

262.     In cases where an activity requires a licence under the Bill, and would otherwise also require consent under section 109 of the Water Resources Act 1991, the Environment Agency can remove the need for separate consent under the Water Resources Act by issuing a notice to that effect to the applicant.

Clause 83: Requirements for Admiralty consent under local legislation

263.     In cases where an activity requires a licence under the Bill, and would otherwise also require consent from the Admiralty under any local legislation, the Secretary of State can remove the need for that separate consent by issuing a notice to that effect to the applicant.

Clause 84: Byelaws for flood defence and drainage purposes

264.     In cases where an activity requires a licence under the Bill, and would otherwise also require consent from the Environment Agency under any of its byelaws under Schedule 25 to the Water Resources Act, the Environment Agency can remove the need for that separate consent by issuing a notice to that effect to the applicant.

Chapter 3: Enforcement

Offences

Clause 85: Breach of requirement for, or conditions of, a licence

265.     It is an offence for a person to carry out a licensable activity (as defined in clause 66) without a licence or to do so in a manner that breaches any conditions of a licence.

266.     With regards to the construction, alteration or improvement to any works, anyone who owns, occupies or enjoys the use of the works and is bound by specified conditions in a licence, by virtue of clause 71(5) cannot be considered to have committed an offence unless the enforcement authority has issued notice to that person stating they are in breach of licence conditions and they subsequently fail to comply with that notice within a reasonable time period.

267.     Subsection (4) gives the penalties for committing any such offence.

Clause 86: Action taken in an emergency

268.     If a person undertakes a licensable activity without a licence but does so for the purpose of securing the safety of a vessel, aircraft or structure, or for the purpose of saving life, they have a defence against any charge brought against them. However, this is dependent on the person informing the licensing authority within a reasonable timeframe of the matters listed in subsection (2); on the steps taken being reasonable; and on it not being their fault that the emergency occurred.

Clause 87: Electronic communications: emergency works

269.     The scope of emergency works under the electronic communications code (Schedule 2 to the Telecommunications Act 1984) (“the Code”) is broader than that established in clause 86 of the Bill. For example it includes works to put right any interruption in service provided by an operator’s system. This clause therefore gives a defence against any charge brought under the Bill for operations conducted by an operator or undertaker, as defined by the Code, to include those operations which are classified as emergency works by the Code.

Clause 88: Activity licensed by another State

270.     There is a further defence to the undertaking of certain activities without a licence. The activities are those mentioned in subsection (2) - namely the depositing or incineration of any substance or object, or the scuttling of a vessel of floating container, from a British vessel, aircraft or structure, in non-UK waters. For the defence to be applicable, the vessel, aircraft or structure must have either been loaded (in the case of making a deposit or incineration), or started its journey (in the case of scuttling) in a State that is party to the international Conventions identified in subsection (5). Under subsection (4) the activity must also have been undertaken in pursuance of, and in accordance with, a licence issued by the appropriate authority in that State.

271.     The Secretary of State can alter the Conventions listed in subsection (5) by order to reflect changes in international law.

Clause 89: Information

272.     It is an offence for a person who is applying for a new licence, varying or transferring an existing licence or who, in complying with obligations imposed either by this Part or a licence, knowingly supplies false or misleading information. Penalties set out in subsection (3) apply if an offence has been committed.

Enforcement notices

Clause 90: Compliance notice

273.     A person carrying out a licensed activity in a manner that breaches the conditions of their licence can be issued with a notice requiring compliance. Such a notice is called a compliance notice.

274.     The enforcement authority, as defined in clause 114, can issue a compliance notice in all circumstances where licence conditions have been breached, except where serious harm to either the environment or human health has occurred or is likely to occur, or where the activity has seriously interfered, or is likely seriously to interfere with, other legitimate uses of the sea. A compliance notice may be served, for example in case of a technical breach. The enforcement authority will be able to use other enforcement tools available to it, such as a stop or emergency safety notice, where the breach has led to serious harm or serious interference.

275.     A compliance notice must state the enforcement authority’s reasons for issuing the notice, any steps the enforcement authority requires to be taken, and the time period within which any steps required should be completed.

Clause 91: Remediation notice

276.     A person who has carried out or is in the process of carrying out a licensable activity, either without a licence or in a manner that breaches the conditions of their licence and is causing or is likely to cause any of the results outlined in subsection (5), can be issued with a notice requiring them to put right any damage caused by their activity, pay for another body to put right that damage, or to undertake steps at the site in question or another appropriate site to compensate for the damage caused. Such a notice is called a remediation notice.

277.     The enforcement authority can issue a remediation notice in cases where harm to the environment or human health has occurred, or is likely to occur, or where the activity has interfered with other legitimate uses of the sea, or is likely to do so.

278.     The enforcement authority may only issue a remediation notice after they have consulted the person to whom they intend to issue the notice.

279.     The remediation notice can require the person to take steps to protect the environment, prevent, minimise or mitigate the effects of harm or interference caused, or restore a site to an appropriate condition had the harm or interference not been caused. In addition, the remediation notice may require steps to be taken at a site other than the one affected by the harm or interference (see subsection (9)(f)). It may not be reasonably possible to wholly or partly restore a site to the condition it would have been in had the harm or interference not been caused, so steps to be taken at another site may be deemed more appropriate. This could occur for instance where steps to be taken would be disproportionately expensive compared to the gain achieved or the best course of action may be to allow the site to recover naturally over time.

280.     A remediation notice could be served in addition to a stop notice (see clause 102). This would be the case, for example, where an enforcement authority puts an immediate halt to a damaging activity and then requires the operator to put right the damage already caused.

281.     A remediation notice must state the enforcement authority’s reasons for issuing the notice; any remedial steps or payment to be made as a consequence of the offence or to protect the environment, human health or prevent interference; and the time period within which any steps required should be completed or sum paid. The requirements contained in a remediation notice must be reasonable.

Clause 92: Further provision as to enforcement notices

282.     All compliance and remediation notices must be in writing. They must be served on the person undertaking or in control of the activity in question, and may, if a licence has been granted for that activity and the person is different, also be served on the licensee. Notices can be varied or revoked by issue of a further notice.

283.     It is an offence to fail to comply with a notice.

Civil sanctions

284.     The fixed and variable monetary penalties and processes described in the following clauses are based on those in the Regulatory and Enforcement Sanctions Act 2008.

Clause 93: Fixed monetary penalties

285.     This clause enables the licensing authority (by order) to grant to the appropriate enforcement authority the power to issue a fixed monetary penalty to a person in relation to an offence under this Part.

286.     The appropriate enforcement authority is defined in clause 114.

287.     The appropriate enforcement authority may impose a fixed monetary penalty only when it is satisfied beyond reasonable doubt that the person has committed the relevant offence.

288.     The amount of a fixed monetary penalty will be specified by the order. Different provision may be made for different cases.

Clause 94: Fixed monetary penalties: procedure

289.     This clause specifies certain minimum requirements that the licensing authority must ensure that any fixed monetary penalty regime includes. In particular, when imposing the penalty the enforcing authority must be required to issue a notice of intent to the person setting out the information specified in subsection (3) of this clause, and providing the person with an opportunity to discharge their liability by payment of a prescribed sum. Alternatively a person can make representations, in accordance with subsection (2)(c)(i). The authority may decide to impose a fixed monetary penalty (“final notice”) setting out the information specified in subsection (5). A person on whom a final notice is served has a right of appeal. Subsection (6) sets out the minimum grounds for appeal that must be available.

Clause 95: Variable monetary penalties

290.     This clause enables the licensing authority (by order) to grant to the appropriate enforcement authority the power to issue a variable monetary penalty to a person in relation to an offence under this Part.

291.     The appropriate enforcement authority is defined in clause 114.

292.     The appropriate enforcement authority may impose a variable monetary penalty only when satisfied beyond reasonable doubt that the person has committed the offence.

293.     The enforcement authority will determine the amount of the variable monetary penalty on a case-by-case basis.

Clause 96: Variable monetary penalties: procedure

294.     This clause specifies certain minimum requirements that the licensing authority must ensure that any variable monetary penalty regime includes. In particular, when imposing the penalty the enforcing authority is required to issue a notice of intent to the person setting out the information specified in subsection (3) of this clause, and providing the person with an opportunity to discharge their liability by payment and/or offer an undertaking (for example, remediation works or another kind of activity). Alternatively a person can make representations against the imposition of the notice. The authority may decide to impose a variable monetary penalty (“final notice”) setting out the information specified in subsection (5) and will take into account any representations it has received. A person on whom a final notice is served has a right of appeal. Subsection (6) sets out the minimum grounds for appeal that must be available.

Clause 97: Further provision about civil sanctions

295.     Schedule 7 sets out further provision in relation to the civil sanctions that may be imposed under this Part.

Chapter 4: Delegation

Clauses 98 & 99: Delegation of functions relating to marine licensing; Orders under section 98: supplementary provisions

296.     The licensing authority may by order delegate any of its licensing or enforcement functions listed in this clause to such other body as the licensing authority considers appropriate. This includes powers that the licensing authority might confer on an enforcement authority in orders under clauses 93 or 95 that relate to imposing civil sanctions. However, it does not include those functions specified in subsection (6) of clause 98, which must remain the preserve of Ministerial authority. This enables Ministers either to retain their powers as the marine licensing authority or to delegate such operational activities to another competent body. In England the Government intends that most licensing functions will be delegated to the Marine Management Organisation being established under Part 1 of the Bill.

297.     The body named in an order must agree to accept this responsibility. The licensing authority may not exercise any function it has delegated unless the order explicitly permits it to do so. There is no minimum or maximum period for which the delegation applies. Different functions can be delegated to different bodies, or the same function can be delegated to different bodies in different cases.

298.     Clause 99 enables further provision to be made in an order concerning the exercise of any delegated functions. Subsection (4) provides a list of the aspects of the licensing process that the licensing authority may want to regulate specifically in the order.

Clause 100: Directions to persons as regards performance of delegated functions

299.     This clause applies where a marine licensing authority has delegated some of its licensing or enforcement functions under clause 98. It enables the licensing authority to give further directions to a person to whom it has delegated functions, setting out how those functions should be performed. Subsection (3) requires the person to comply with any such directions, which must be published by the appropriate licensing authority in accordance with subsection (4).

Chapter 5: Supplementary

Register

Clause 101: Register

300.     Each licensing authority must maintain a register of information relating to applications and licences that it is responsible for. It must make the register available to the public. Each licensing authority must also set out in regulations further provision regarding the use and maintenance of its register.

301.     Information can be withheld from the register if disclosure would, in the opinion of the Secretary of State, threaten national security or adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest. In the latter case, review of the excluded information must take place after four years. There is a presumption that after this period the excluded information will be made public unless both the person to whom the information relates and the licensing authority agree that it should remain excluded, in which case it will be reviewed in a further four years. The existence of commercially sensitive information has to be recorded in the register.

Stop notices and emergency safety notices

Clause 102: Notice to stop activity causing serious harm etc

302.     The enforcement authority can issue a notice to a person prohibiting them from carrying on a licensable marine activity if that activity is causing or is likely to cause serious harm to the environment, human health or is causing or is likely to cause serious interference with legitimate uses of the sea. Such a notice is called a stop notice.

303.     The enforcement authority can issue a stop notice regardless of whether the person has a marine licence or not and (if they have a licence) regardless of whether they are operating in accordance with the licence conditions.

304.     A stop notice must state the enforcement authority’s reasons for issuing the notice; the date and time that the activity must cease being carried out and any steps required by the enforcement authority to be carried out to ensure safe cessation.

305.     An initial stop notice can be in effect for up to seven days. The stop notice may be extended but only up to a combined total period of 35 days. This limit does not apply where the activity is carried out without a marine licence. In such cases stop notices can be remain in effect until a marine licence is granted for the activity in question.

Clause 103: Further provision as to stop notices

306.     Stop notices must be in writing. They must be served on the person undertaking or in control of the activity in question, and may, if a licence has been granted for that activity and the person is different, also be served on the licensee. A notice can be revoked or varied.

307.     It is an offence to fail to comply with a stop notice.

Clauses 104 & 105: Emergency safety notices; Further provision as to emergency safety notices

308.     These clauses provide a way to enforce the navigational safety provisions being repealed in section 36A of the Coast Protection Act 1949.

309.     An enforcement authority is able to issue a notice to a person if it appears that serious interference with legitimate uses of the sea is occurring, or is likely to occur, as a result of licensable works. The notice can require the provision of lights, signals, other aids to navigation or guard ships to be placed around the activity until the serious interference, or threat of interference, is removed.

Other powers

Clause 106: Power to take remedial action

310.     In circumstances where a licensable activity has been undertaken, either without a licence or in a manner that breaches conditions of a licence, which has caused, is causing or is likely to cause harm to the environment or human health or interference with legitimate uses of the sea, the licensing authority, by virtue of this clause, has the power to undertake any works for the purposes outlined in subsection (2).

311.     This power is not limited in use to those circumstances where the authority has issued a remediation notice.

Clause 107: Power to test, and to charge for testing, certain substances

312.     At any person’s request, the licensing authority may perform tests on substances for their effect on the marine environment, and to charge for that testing. Substances covered by the testing regime include those used to treat oil or chemicals, algae or other living or dead organisms that may foul a surface, whether on, in or under the sea or seabed, or on a vessel, vehicle, aircraft or marine structure.

 
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Prepared: 10 June 2009