|
Clause 300: Occupiers’ liability
774. The CROW Act amended section 1 of the Occupiers’ Liability Act 1984 in certain respects including by removing the liability of occupiers of access land to those exercising the right of access, and to trespassers, in respect of risks arising from natural features of the landscape “or any river, stream, ditch or pond whether or not a natural feature”. This exclusion of liability is subject to certain safeguards and does not apply if the danger is due to anything done by the landowner with the intention of creating that risk, or being reckless as to whether that risk is created.
775. This clause extends this exclusion of liability, for land which is coastal margin, in respect of a risk resulting from any physical feature (whether of the landscape or otherwise). Coastal land includes many man-made features, for example war-time defences. Occupiers should enjoy the same reduced liability for these as they enjoy for natural features.
General
Clause 301: Isles of Scilly
776. This clause relates to the position of the Isles of Scilly. Subsection (1) provides that clauses 290 to 295, 298, 299, 302, 303 and Schedule 20 do not apply to the Isles of Scilly unless there is an order made by the Secretary of State under subsection (2). Subsection (3) requires the Secretary of State to consult the Council of the Isles of Scilly before making such an order.
777. Part 4 of the 1949 Act applies to the Isles of Scilly, but an order under section 111 of that Act can provide for it to apply as if those Isles were a separate county (and not part of Cornwall). Subsection (4) makes it clear that such an order can be made in relation to Part 4 of that Act as amended by this Part of the Bill. Part 1 of the CROW Act does not apply to the Isles of Scilly unless an order is made under section 100 of that Act applying it there. Subsection (5) makes it clear that an order under section 100 of the CROW Act can be made in relation to Part 1 of that Act as amended by this Part of the Bill.
Clause 302: The Crown
778. This clause makes Part 9 of the Bill binding on the Crown and applies it to any Crown land. Subsection (2) sets out what constitutes “Crown land”.
779. Subsection (3) enables the appropriate authority (as defined by subsection (5)) in relation to land held by or on behalf of the Crown to enter into an agreement under section 35 of the CROW Act (agreements with respect to means of access) entered into by Natural England or an access authority, by virtue of paragraph 1 of Schedule 20) or an agreement under paragraph 2 of that Schedule in respect of that Crown land. Subsection (4) provides that an agreement with respect to any other interest in Crown land (for example, a person entering an agreement in respect of his leasehold interest in Crown land) is of no effect unless it has been approved by the appropriate authority in relation to that land. Subsection (5) sets out what constitutes the “appropriate authority” in relation to different categories of Crown land.
780. Subsection (6) provides for any question as to which Crown authority is the appropriate authority for the purpose of making or approving an agreement under subsection (3) to be referred to the Treasury, whose decision is final. Subsection (7) provides for any reference to Her Majesty’s private estates to be construed in accordance with section 1 of the Crown Private Estates Act 1862.
Clause 303: Interpretation of this Part
781. A number of definitions are provided for words or expressions used in this Part.
Wales
Clause 304: Powers of National Assembly for Wales
782. This clause amends the Government of Wales Act 2006 to confer legislative competence on the National Assembly for Wales. The clause provides competence in relation to the establishment and maintenance of a route (or a number of routes) for the coast to enable the public to make recreational journeys. However, the clause specifies that this does not include competence to create new highways by Assembly Measure or to enable journeys by mechanically propelled vehicles, except permitted journeys by qualifying invalid carriages. It also provides competence in relation to the securing of public access to relevant land for the purpose of open-air recreation. Land is relevant land if it:
b) can be used for the purposes of open-air recreation in association with land within paragraph (a); or
c) can be used for the purposes of open-air recreation in association with the route or routes.
783. The clause provides that for the purposes of the clause, the coast means the coast of Wales adjacent to the sea, including the coast of any island. It also provides that the sea includes the relevant upstream waters of a river, and that these are the waters from the seaward limit of the estuarial waters of the river upstream to the first bridge or tunnel by means of which the public have rights to cross the river on foot (the public foot crossing).
PART 10: MISCELLANEOUS
Natural England
Clause 305: Area in which functions of Natural England exercisable
784. This clause amends section 1 of the Natural Environment and Rural Communities Act 2006 (c.16) in order to clarify the area over which Natural England may exercise its functions. Subsection (2) amends subsection (3) of the 2006 Act so that the reference to England includes, where the context requires, the territorial sea adjacent to England (up to 12 nautical miles from baseline). Subsection (3) inserts subsection (3A) allowing for boundary changes to be made through Orders in Council.
785. Natural England and its predecessor bodies have regularly undertaken research and given advice on relevant marine issues within territorial waters. However, a new formulation of their territorial scope was expressed in the NERC Act which it has been suggested might restrict their scope. So this clause is not intended to alter the status quo, but merely to make it clear that Natural England may exercise functions in the territorial sea adjacent to England.
Clause 306: Natural England not to be responder for Civil Contingencies Act 2004
786. This clause amends Schedule 1 to the Civil Contingencies Act 2004 (c. 36) (category 1 and 2 responders) so as to omit paragraph 11A (Natural England). Paragraph 11A was inserted by paragraph 174 of Schedule 11 to the Natural Environment and Rural Communities Act 2006 (c. 16), and had the effect of making Natural England a category 1 responder. Such responders have duties under section 2 of the 2004 Act (for example, to assess emergency risks and to maintain contingency plans). It has not been commenced. This clause will remove Natural England from the lists of category 1 responders. Natural England has an important role in certain types of emergency, but it has been concluded that non-statutory arrangements are a more cost-effective way of engaging them.
Countryside Council for Wales
Clause 307: Area in which functions of Countryside Council for Wales exercisable
787. This clause amends Part VII of the Environmental Protection Act 1990 in order to clarify the area over which the Countryside Council for Wales may exercise its functions. The effect of clause 307(2) is to amend the 1990 Act in order to clarify that CCW’s functions are, except where otherwise expressly provided, exercisable in relation to Wales only. Wales is defined by reference to the definition of Wales in the Government of Wales Act 2006. This means that CCW’s functions are exercisable in the sea adjacent to Wales up to 12 nautical miles from the baseline.
788. The effect of clause 307(3) and the proposed amendment to section 132 of the 1990 Act is that CCW will be able to:
a) provide advice to the Welsh Ministers on the development and implementation of policies for or affecting nature conservation in Wales and the Welsh zone;
b) provide advice and the dissemination of knowledge to any persons about nature conservation in Wales and the Welsh zone, or about matters arising from the discharge of their functions under section 132 or section 134 of the 1990 Act in relation to Wales and the Welsh zone; and
c) commission or support (whether by financial means or otherwise) research which in their opinion is relevant to any of their functions under section 132 or section 134 in relation to Wales or the Welsh zone.
789. CCW will also be able to accept any gifts or contributions made to them for these purposes and subject to the terms of the gift or contribution, to apply it to those purposes. CCW will also be able to initiate and carry out such research directly related to those functions as it is appropriate that they should carry out instead of commissioning or supporting other persons under section 132(1)(e). The amendment to section 134 of the 1990 Act means that CCW’s functions in relation to the giving of financial assistance and the making of grants are also exercisable in relation to Wales and the Welsh zone.
Works detrimental to navigation
Clause 308: Works detrimental to navigation
790. This clause inserts a new navigational consenting regime into the Energy Act 2008 and provides a variety of powers for the enforcement of that regime.
791. Consent under these provisions is only needed if all the following are satisfied:
- The operation being undertaken falls within a description listed in subsection (4) of the inserted section 79A;
- The operation is being carried out subject to any of the legislative permissions mentioned in subsection (5) of the inserted section 79A;
- The operation causes, or is likely to result in, obstruction or danger to navigation, either while the operation is being carried out or after its completion (section 79A(3)(a)). This includes any intended use to which any works in question are likely to be put (section 79A(7)).
792. Consent will not be needed under these provisions if the operation in question requires a marine licence under Part 4 of this Bill.
793. The Secretary of State may publish notice of any applications received (section 79B(2)) and may direct a local inquiry to be held (section 79B(4)) into that application before making any determination under section 79C.
794. The Secretary of State can give consent subject to any conditions as he or she thinks fit (section 79C). The conditions can remain in force for a set period of time or indefinitely (section 79D(2)) and can bind not only the person to whom consent is given, but also any other person who owns, occupies or enjoys the use of the works forming the subject of the consent (section 79D(3)). It is an offence to fail to comply with a consent or any condition of a consent and any offender will be subject to the penalties outlined in section 79I(2).
795. In the event of a consent holder failing to comply with any provision of a consent, the Secretary of State can direct the consent holder to take appropriate steps to bring them into compliance (section 79E). Failure to comply with any such direction is an offence subject to the penalties outlined in section 79K(2).
796. If after consent has been given, a danger to navigation arises because substantial damage, or other substantial and unforeseen changes in the state of any works, has occurred, the Secretary of State can serve an “emergency safety notice” on the consent holder (section 79F). The requirements that an emergency safety notice can impose relate only to those matters given in section 79F(5). If a consent holder fails to comply with any requirement of an emergency safety notice the Secretary of State can make arrangements to ensure compliance with that notice and recover the costs of doing so from the consent holder or other person bound by a consent (section 79G(3)). Further, it is an offence to comply with an emergency safety notice, and a person committing such an offence is subject to the penalties given in section 79L(2).
797. The Secretary of State may impose an “immediate action notice” on a consent holder, or other person bound by a condition on a consent, if as a result of a failure to comply with a consent condition a danger to navigation has arisen (section 79H). The immediate action notice can impose a requirement on a person to comply with the condition or to take action to remedy their failure to comply with the condition. If a consent holder, or other person on whom a notice is served, fails to comply with any requirement of an immediate action notice the Secretary of State can make arrangements to ensure compliance with that notice and recover the costs of doing so from the consent holder or other person bound (section 79G(1) to (6) applies by virtue of section 79H(5)). Further, it is an offence to comply with an immediate action notice, and a person committing such an offence is subject to the penalties given in section 79L(2).
798. In addition to using any of the other enforcement powers, the Secretary of State can apply to a court for an injunction (or interdict in Scotland) to restrain any breach of a consent (section 79M).
799. The Secretary of State has the power to appoint inspectors to assist in the carrying out of his or her functions under these provisions (section 79N).
800. The Secretary of State can by order extend these provisions, subject to modification, to Scottish inshore waters but only in so far as they relate to activities that Scottish Ministers do not have the power to control or regulate for the purpose of preventing obstruction or danger to navigation (section 79P).
Harbours Act 1964
Clause 309: Amendments of the Harbours Act 1964
801. Schedule 21 sets out a number of miscellaneous amendments of the Harbours Act 1964.
PART 11: SUPPLEMENTARY PROVISIONS
Clause 310: Regulations and Orders
802. This clause contains general provisions for making regulations and orders under the Bill.
Clause 311: Directions
803. This clause contains details for making directions under the Bill.
Clause 312: Offences by directors, partners, etc
804. This clause provides for individual liability in some cases where there is also corporate liability and sets out certain procedures to be followed in the case of an offence.
805. Where the offence has been committed by a Scottish firm, subsection (4) states that proceedings can be brought against an individual partner as well as the partnership.
Clause 313: Disapplication of requirement for consent to certain prosecutions
806. Section 3 of the Territorial Waters Jurisdiction Act 1878 Act provides that a person who is not a British subject may not be prosecuted for an indictable offence committed in the territorial sea without the consent of the Secretary of State. This clause has the effect of disapplying section 3 of the 1878 Act in relation to proceedings for offences committed under the Bill.
Clause 314: Power to make transitional provisions and savings
807. This clause allows the Secretary of State to make, by order, transitional provisions and savings for any Part of the Bill.
Clause 315: Repeals
808. Repeals are found in Schedule 22.
Clause 316: Interpretation
809. This clause contains definitions of expressions used in the Bill.
810. The term “public body” is not apt to include, and is not defined so as to include, Her Majesty, the Duchy of Lancaster or the Duchy of Cornwall. Similarly, in the definition of “public office holder”, “person holding.. an office under the Crown” is not apt to include persons who are officers of Her Majesty in Her private capacity, officers of Her Household or officers of either the Duchy of Lancaster or the Duchy of Cornwall.
Clause 317: Extent
811. This clause sets out to which parts of the UK the provisions in the Bill apply. This is different for different Parts of the Bill.
Clause 318: Commencement
812. This clause prescribes when the different provisions in the Bill will come into force. The intention is that Part 3, certain parts of Parts 5 and 6, and Part 9 will come into force 2 months after the Bill receives Royal Assent. Other Parts of the Bill will come into effect on a date which will be set out in an order made by the Secretary of State or, in the case of certain provisions to the extent they relate to Wales, the Welsh Ministers. However, Ministers will be able to make orders under the Bill from the date of Royal Assent.
Clause 319: Short title
813. This clause gives the short title of the Act (which the Bill will become on Royal Assent) as the “Marine and Coastal Access Act 2009”.
SCHEDULE 1: THE MARINE MANAGEMENT ORGANISATION
814. This Schedule sets out detailed arrangements for the establishment of the MMO including the appointment, terms of appointment (including allowances) and resignation or suspension from office of the MMO chair and other board members. The chair and board members are appointed by the Secretary of State, the latter after consultation with the chair.
815. The Schedule also makes provision for the appointment of staff by the MMO including the chief executive and the chief scientific adviser. The Secretary of State must approve the person chosen as chief executive and may make the first appointment. The MMO is enabled to pay pensions, allowances and gratuities in respect of any staff but this determines must be approved by the Secretary of State.
816. The MMO must provide the Secretary of State with an annual report detailing how it discharged its functions during that year. It must also keep proper accounts and records. A statement of accounts must be prepared for each financial year and a copy of that statement provided to the Secretary of State and to the Comptroller and Auditor General (the National Audit Office) for auditing. The annual report, the statement of accounts certified by the Comptroller and Auditor General and the Comptroller and Auditor General’s report on that statement must be submitted to the Secretary of State and laid before Parliament.
817. The MMO must also provide any information that is needed relating to these accounts and returns, in respect of its property and the discharge of its functions, to the Secretary of State. It must also allow inspection of its accounts or other documentation relating to the above, or any explanation of them which is required.
SCHEDULE 2: MINOR AND CONSEQUENTIAL ARRANGEMENTS RELATING TO THE MMO
Paragraph 1: Public Records Act 1958
818. This paragraph amends the Public Records Act 1958 to make the administrative records of the MMO “public records” for the purposes of that Act.
Paragraph 2: Parliamentary Commissioner Act 1967
819. This paragraph adds the MMO to the list of bodies which are subject to investigation by the Parliamentary Commissioner for Administration in the event of maladministration.
Paragraph 3: House of Commons Disqualification Act 1975
820. This paragraph adds the MMO to the list of bodies, membership of which will disqualify a person for membership of the House of Commons.
Paragraph 4: Race Relations Act 1976
821. This paragraph adds the MMO to the list of bodies subject to the statutory duty to promote race equality.
Paragraph 5: Inheritance Tax Act 1984
822. This paragraph adds the MMO to the list of bodies that are not liable to inheritance tax when property is transferred to them.
Paragraph 6: Freedom of Information Act 2000
823. This paragraph adds the MMO to the list of public authorities which are subject to the requirements of the Freedom of Information Act 2000 and, consequentially, the requirements of the Environmental Information Regulations 2004 (S.I.2004/3391).
SCHEDULE 3: TRANSFER SCHEMES
824. This Schedule makes detailed provision in relation to transfer schemes made under clause 39.
Paragraph 1: Introductory
825. This paragraph defines a “transferor” and “transferee”. The “transferor” is likely to be a Government Department and the “transferee” the MMO.
Paragraph 2: The property, rights and liabilities that may be transferred
826. By this paragraph, a transfer scheme can make provision for the transfer of property, rights or liabilities, even where that property, or those rights or liabilities, would not otherwise be capable of transfer.
Paragraph 3: Creation and apportionment of property, rights or liabilities
827. This paragraph enables the creation of interests in or rights over transferred property for the benefit of transferor and/or the transferee and/or others. It also allows the creation of rights and liabilities between the transferor and transferee.
Paragraph 4: Vesting certificates
828. This paragraph confirms that a certificate issued by the Secretary of State stating that anything vested in any person under a transfer scheme is to be taken as conclusive evidence of that fact. This certificate is evidence that a transfer has taken place.
Paragraph 5: Employment contracts
829. This paragraph makes provision in relation to rights and liabilities under a contract of employment transferred by means of a transfer scheme. It provides that a contract of employment does not end when there is a transfer of employment under a transfer scheme. The contract of employment will continue as if it had been made between the employee and the MMO (the transferee). This provision is equivalent to regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”) and conforms with the Cabinet Office statement of practice of January 2000 “Staff Transfers in the Public Sector”. This states that public sector bodies should ensure that the principles of TUPE are followed and that transferring public sector staff are offered terms that are, overall, no less favourable than those set out in TUPE.
Paragraph 6: Employee expressing objection to transfer of contract of employment
830. This paragraph sets out what happens if an employee objects to the transfer of their employment contract under a scheme. The contract of employment will cease at the point the transfer would have taken place but the employee is not to be considered to have been dismissed.
Paragraph 7: Right to terminate contract of employment for substantial detrimental change in conditions
831. This paragraph preserves an individual’s right to terminate their contract of employment where there is a substantial detrimental change in working conditions. A detrimental change is something other than a change in employer.
Paragraph 8: Civil servants
832. This paragraph makes provision for the employment of persons employed in the civil service at the point of transfer under a transfer scheme. The terms of their
employment in the civil service will form the terms of a contract of employment with the transferee.
| 
