|Marine And Coastal Access Bill [HL] - continued||House of Commons|
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967. Schedule 18 makes detailed provision in respect of the forfeiture of gear or fish which fail to meet size requirements under clauses 269 and 270. The Schedule provides that the notice must be served on the person who appears to the relevant authority to be the owner (or any of the owners) at the time of the seizure (and if the property was seized from a vessel then also the master, owner or charterer at that time) and states that the notice must set out the reason for the intended forfeiture action, together with the details of how a notice of claim may be made. Provision is made covering delivery of the notice of intended forfeiture.
968. A person disputing that the property is liable to forfeiture may submit a notice of claim. Provision is made as to the time limits for submitting such a notice and the details that it must include. If no notice of claim is made then the property is automatically forfeit. If a valid notice is submitted then the property must either be returned or the relevant authority must bring forfeiture proceedings in a court. In forfeiture proceedings the court may order forfeiture or that the property is returned if it is not satisfied that the property is forfeitable. If the property is not collected by the appropriate owner after the three-month period for collection has lapsed, then the relevant authority may dispose of the property as it sees fit provided that at the time of disposal it cannot be returned immediately to the person to whom it is required to be returned.
969. The Schedule also gives the relevant authority the power to destroy any fish which are liable to be treated as forfeit or condemned even if they have not actually been forfeited or condemned. Where the court is not satisfied that the destroyed fish were forfeitable, it has the power to order the relevant authority to pay the claimant the market value of the fish at the time they were seized, determined by a Court-appointed referee. Accepting this payment prevents a claimant maintaining an action in respect of the seizure, detention or destruction of the fish. Further provision is made concerning the detail of the forfeiture proceedings (including matters as to proof), the effect of forfeiture, how property is to be disposed of, who may be a referee and provisions on partnerships.
970. Schedule 1A sets out the procedure for making and considering objections and representations about coastal access reports. This procedure is as follows:
971. Paragraph 2 says that Natural England must advertise a coastal access report and must take reasonable steps to give notice of the report to those with a relevant interest in affected land and to certain bodies, and to persons set out in regulations. It also says that the Secretary of State may make regulations relating to the form, manner and timing of advertisements and notices.
972. Paragraph 3 says that those with a relevant interest in affected land may make an objection to Natural Englands report. In order to be admissible an objection must meet certain requirements set out in subparagraphs (3) and (4) of paragraph 3 and any requirements of regulations made in accordance with sub-paragraph 7(b). The ground of the objection must be that the proposals fail to strike a fair balance as a result of certain issues set out in subparagraph (3). These are the position of any part of the proposed route; proposals for routes subject to erosion; proposals for alternative routes; proposals for the boundary of the coastal margin to coincide with a physical feature; proposals for exclusions and restrictions of access, and any decision to treat the relevant upstream waters of a river as part of the coast. Subparagraph (4) says that the person making the objection must specify the reasons they are of the opinion a fair balance has not been struck. Subparagraph (5) says that the person making the objection may propose modifications of the proposal, but these must meet certain criteria set out in subparagraph (6) - they must be practicable, take account of the considerations mentioned in clause 291(2) and (where appropriate) 295(4), and must be in accordance with the coastal access scheme. Subparagraph (7) says that the Secretary of State may make regulations about the steps to be taken by Natural England to make persons with a relevant interest in affected land aware of their entitlement to make objections, and the form and manner in which, and period within which, objections are to be made.
973. Paragraph 4 says that any objection received by Natural England must be forwarded to the Secretary of State, and that the Secretary of State must refer the objection to the appointed person. It also sets out details about the appointment of the appointed person.
974. Paragraph 5 says that the appointed person must decide if the objection is admissible (as set out in paragraph 3) and must give a notice of that determination to the person who made the objection, Natural England and the Secretary of State.
975. Paragraph 6 places an obligation on Natural England to provide comments on objections to the Secretary of State. The appointed person may require Natural Englands comments to include information on any relevant alternatives or rejected options.
976. Paragraph 7 says that anyone may make a representation to the Secretary of State about the coastal access report. Paragraph 8 says that representations from those to whom Natural England had to give a notice under paragraph 2(2)(b) to (f) will be sent to the Secretary of State together with Natural Englands comments on them. Other representations will be summarised by Natural England and sent to the Secretary of State with Natural Englands comments.
977. Paragraph 9 sets out the documents which the Secretary of State must send to the appointed person with regard to an admissible objection.
978. Paragraph 10 says that the appointed person must determine whether the proposals in the report fail, in the respects specified in the objection, to strike a fair balance, as a result of the matter or matters within paragraph 3(3) specified in the objection. The appointed person will consider the information and if he is minded to decide that a fair balance has not been struck he will publish the objection and invite representations - anyone can make representations to the appointed person. This is necessary only if the appointed person considers a fair balance may not have been struck - if he considers it has been struck in Natural Englands proposals, then he must make a report recommending that the Secretary of State makes a determination to that effect. There has already been an opportunity to make representations on Natural Englands proposals.
979. Paragraph 11 says that the appointed person must give a report to the Secretary of State in which he recommends whether the Secretary of State should determine that the proposals do not fail to strike a fair balance, or that they do fail to strike a fair balance. If he recommends that they do fail to strike a fair balance, then the appointed person must recommend either that no modification would strike the fair balance, a certain modification would strike the fair balance, or a certain modification may strike the fair balance. Where he recommends that no modification would strike a fair balance, he may additionally make a recommendation that a certain modification would, or may, mitigate the effects of the failure to strike a fair balance.
980. Paragraph 12 says that the appointed person may ask for other relevant information from Natural England or the Secretary of State.
981. The appointed person may limit the proceedings to written representations, or, as set out in paragraph 13, a hearing or local inquiry may be held where it is considered necessary or expedient to do so.
982. Paragraph 14 gives the Secretary of State a power to make regulations regarding the consideration of objections by the appointed person. These may allow two or more objections to be considered together by the appointed person; may make provision for the appointed person to conduct an inspection of land and may make provision for the conduct of a hearing or local inquiry.
983. Paragraph 15 gives the Secretary of State powers to make provisions for procedures to be followed where he may wish to consider modifications to Natural Englands proposals (these would be modifications other than those proposed with reference to an objection).
984. The Secretary of State makes a determination on the report as a whole. In making the determination he must consider certain information as set out in paragraph 16, including any objections, Natural Englands comments on them, the report of the appointed person, any representations and Natural Englands comments on them. Paragraph 16 also makes clear that, in making a determination, the Secretary of State may approve proposals relating to one or more parts of the route only, and may reject the remaining proposals. He may also make regulations about the procedure to be followed where he is minded to approve the proposals with modifications other than modifications contained in a report from the appointed person. The Secretary of State will also be bound by a finding of fact in the report of the appointed person, except where eg there was insufficient evidence to make the finding or the finding was made by reference to irrelevant facts.
985. The Secretary of State must give notice of his determination to persons with a relevant interest in affected land, or publish such notice, and in addition must give notice to certain bodies, including local authorities and local access authorities, as set out in paragraph 17. The notice must include, so far as relevant to the objection, a statement of his reasons for the determination.
986. Paragraph 18 provides an interpretation of certain words for the purposes of this Schedule.
Extension of Chapter 3 of Part 1 of the CROW Act
987. Paragraph 1 provides for the powers of access authorities in relation to means of access to access land set out in Chapter 3 of Part 1 of the CROW Act to be exercisable by Natural England for the purposes of the coastal access duty. Paragraph 1(1) makes the Chapter 3 powers apply additionally to land over which the coastal route passes which falls under any of the enactments set out in section 15 of the CROW Act.
988. Paragraph 2 provides for Natural England to enter into an agreement with the owner or occupier of any land where it thinks it appropriate for works to be carried out in order to meet its coastal access duty, as set out in clause 290. Sub-paragraph (2) enables the access authority to enter into a similar agreement. Sub-paragraph (3) defines the types of works that the agreement may include, including clearance or maintenance, the removal of an obstruction to the route, clearance or maintenance to enable the public to enter or remain on land on a bicycle or on horseback (where a general restriction under Schedule 2 to the CROW Act has been removed or relaxed), drainage or levelling, or the construction of a barrier.
989. Sub-paragraph (4) enables the works to be carried out by either the owner or occupier or by a contracting authority (which is defined in sub-paragraph (8) as being either Natural England or the access authority), and allows a contracting authority to make a contribution towards the costs of the works under the agreement if the works are carried out by the owner or occupier.
990. Sub-paragraphs (5) and (6) enable a notice to be given by the contracting authority to the owner or occupier, if the owner or occupier required by the agreement to carry out the works fails to carry them out. Sub-paragraph (6) requires the contracting authority to give at least 21 days notice before taking steps to carry out the works.
991. Sub-paragraph (7) enables the contracting authority to recover the costs of any works where a notice under sub-paragraph (6) has been given.
992. Sub-paragraphs (1) to (3) of paragraph 3 enable Natural England or the access authority, to give notice of its intention to carry out works as set out in paragraph 2(2) that they consider necessary to enable Natural England to meet its coastal access duty (as set out in clause 290) on any land, where it is unable to conclude an agreement under paragraph 2.
993. Sub-paragraph (4) requires a period of not less than 21 days notice to be given to the owner or occupier before any works can be carried out.
994. Sub-paragraph (5) requires that the notice given to the owner or occupier must provide details of how an appeal against the notice may be made.
995. Sub-paragraph (6) requires the notice to be given to each owner or occupier of any land to which the notice refers.
996. Sub-paragraph (7) enables Natural England or the access authority to take steps to carry out the works if any of the required works have not been carried out before the end of the period specified in the notice. Sub-paragraph (8) provides that they must have regard to the requirements of efficient management of the land in deciding how to carry out the works.
997. Paragraph 4 provides for appeals to be made against a notice given under paragraph 3, which relates to works to be carried out in relation to the establishment and maintenance of the route in the absence of an agreement. Sub-paragraph (1) enables the person given that notice, or any other owner or occupier of the land to which the notice relates, to appeal to the Secretary of State.
998. Sub-paragraph (2) sets out the grounds on which an appeal may be made. These are: that the notice requires the carrying out of works which are not necessary, that the works have already been carried out, or that the period specified in the notice after which Natural England or the access authority are to take steps to carry out the works is too short. Sub-paragraph (3)(a) allows the Secretary of State, where an appeal has been made, to confirm the notice (with or without modifications) and sub-paragraph (3)(b) allows him to cancel the notice.
999. Sub-paragraph (4) provides for sections 7 and 8 of, and Schedule 3 to, the CROW Act to apply to an appeal made under this clause. Those provisions, among other things, enable the Secretary of State to cause an appeal to take the form of a hearing and to delegate functions relating to appeals.
1000. Sub-paragraph (5) allows the Secretary of State to make regulations as to the period and manner in which appeals may be made, the advertising of such an appeal and the manner in which appeals are to be considered.
1001. Sub-paragraph (6) says that, where an appeal has been made, neither Natural England nor an access authority may exercise any of its functions relating to paragraph 3 until the appeal is determined by the Secretary of State or withdrawn.
1002. Paragraph 5 provides for Natural England to meet or contribute to the costs of any works of a kind which could be the subject of an agreement reached by either Natural England or an access authority under paragraph 2, or an agreement under section 35 of the CROW Act where it is exercised for the purposes of the coastal access duty.
1003. Paragraph 6 allows Natural England to put up and maintain certain notices or signs on land over which the route passes and land which is accessible to the public by virtue of an order under section 3A of the CROW Act. Sub-paragraph (2) provides that notices or signs may identify or provide information about the route, warn the public of obstacles or hazards along the route or be any other notices or signs relating to the coastal route. Sub-paragraph (3) provides that Natural England must consult with the owner and lawful occupier of land before erecting a notice or sign. Sub-paragraph (4) allows Natural England to meet or contribute towards the costs to others of erecting such notices and signs. Sub-paragraph (5) allows Natural England to delegate its powers under this section to the access authority.
1004. Sub-paragraph (6) provides that this paragraph does not apply in relation to a highway over which there are rights for mechanically propelled vehicles, or a footway (for example, a pavement) which forms part of such a right of way. The effect of this is that the powers in the paragraph may be used on footpaths, bridleways and restricted byways but not on highways over which there are rights to drive mechanically propelled vehicles, or footways attached to such highways. Sub-paragraph (7) defines mechanically propelled vehicles and footways for the purposes of sub-paragraph (6). The term mechanically propelled vehicle when used in this context does not include electrically assisted pedal cycles.
1005. Paragraph 7 amends section 19 of the CROW Act to give Natural England the same powers as the access authority with regard to notices indicating the boundaries of access land where that land is coastal margin.
1006. Paragraph 8 allows Natural England and an access authority, where authorised by Natural England, to remove a notice or sign relating to the coastal margin which was erected under paragraph 6 or erected under section 19 of the CROW Act. Sub-paragraph (3) requires a person removing a sign or notice to consult, as far as reasonably practicable, the owner and, if different, the lawful occupant of the land before removing a notice or sign.
1007. Sub-paragraph (4) enables Natural England to meet or contribute towards the costs to others of removing notices and signs of a kind that could have been erected under paragraph 6 or, in relation to land which is coastal margin, under section 19 of the CROW Act.
1008. Paragraph 9 provides for powers of entry. Sub-paragraph (1) sets out the purposes for which a person authorised by Natural England may enter any land. These are: for surveying that or any other land in preparing a report containing proposals for the coastal route; considering representations made in respect of a report; determining how to treat a river estuary under clause 295, and advising the Secretary of State in relation to the power to specify islands under clause 294. Sub-paragraph (2) sets out purposes for which a person authorised by either Natural England or the access authority may enter any land. These are: for determining whether any works are necessary under paragraph 2(3) of this Schedule; for the purpose of carrying out any works (relating to means of access for the purpose of the coastal access duty and to establishment and maintenance of the coastal route) under section 35(2)(a) of the CROW Act, under paragraph 2(6) or paragraph 3(7), or under 36(1) or (5) or 37(5) of the CROW Act; to determine whether the public is able to exercise rights of access with regard to the coastal route on land subject to section 15 of the CROW Act; for the purposes of an appeal made against a notice made under paragraph 4; and for the purposes of erecting, maintaining or removing a notice or sign under paragraphs 6 or 8 or, as regards land which is coastal margin, under section 19 of the CROW Act.
1009. Sub-paragraph (3) provides for the provisions in section 40(5) to (7), (9) and (10) of the CROW Act, which apply to the exercise of powers of entry and rights under section 40 of that Act, also to apply in relation to a person exercising the powers of entry and other rights conferred by this paragraph.
1010. Sub-paragraph (4) has the effect of applying the powers relating to compensation under section 41 of the CROW Act to a body by which an authorisation may be given under this clause.
1011. Sub-paragraph (5)(a) provides that where a person authorised to enter land is to carry out any works under sub-paragraphs (2)(b) or (c), either a notice has to have been given to the occupier under paragraph 2(6) or under sections 36 or 37 of the CROW Act or at least 7 days notice must be given to the occupier before the person may enter the land. The effect of this is to ensure that where notice has been given to the owner (who is not also the occupier) of land under paragraph 2(6) or under sections 36 or 37 of the CROW Act then the occupier of land is given at least 7 days notice. Sub-paragraph (5)(b) provides that in any other case, where a power of entry is exercised under this paragraph at least 24 hours notice must be given to the occupier unless it is not reasonably practicable to give such notice.
1012. A number of definitions are provided in paragraph 10 for words and expressions used in this Schedule.
Paragraph 2: Provision that may be made by harbour empowerment order
1013. Under the Harbours Act 1964, the relevant authority has powers to repeal or modify Acts of local application when making a Harbour Revision Order or a Harbour Reorganisation Scheme. Paragraph 2 provides that this power will also apply when making a Harbour Empowerment Order.
1014. The Bill will amend the Harbours Act 1964 so that the authority that is currently responsible for issuing harbours orders will have the power, by order, to delegate some or all of its functions for making certain orders to another person or body, provided that person or body gives consent for the delegation.
1015. In this way the licensing functions that govern harbours may be transferred to the same body that may be responsible for issuing marine licences as a result of an order issued under clause 98.
1016. The functions the authority can delegate are:
1017. Orders delegating functions made by the relevant authority will be subject to negative resolution procedure.
1018. Table 3 below illustrates who can issue which harbour order and in what circumstances after a delegation of powers has been made.
1019. Table 3: Roles of harbour order issuing bodies after delegation
1020. Paragraph 4 inserts a new section 42C into the Harbours Act. Its effect would be that the Secretary of State cannot make a harbour order or scheme that would repeal or modify: any provision of the Bill so far as it applies to Wales; an instrument made under the Bill by the Welsh Ministers; or a provision of local application made by the Welsh Ministers, without the prior consent of the Welsh Ministers. If the Welsh Ministers refuse their consent, the harbour order or scheme can be made but without that provision that does the repealing or modifying. The new sections also provide that if the Welsh Ministers have not refused their consent within a period to be set, the Secretary of State may continue with the process of making the order.
1021. Similarly, paragraph 4 inserts a further new section 42D into the Harbours Act which states that the Welsh Ministers cannot make a harbour order or scheme that would repeal or modify: any provision of the Bill so far as it applies to England; an instrument made under the Bill by the Secretary of State; or a provision of local application made by the Secretary of State, without the prior consent of the Secretary of State. If the Secretary of State refuses consent, the harbour order or scheme can be made but without that provision that does the repealing or modifying. The new sections also provide that if the Secretary of State has not refused consent within a period to be set, the Welsh Ministers may continue with the process of making the order.
|© Parliamentary copyright 2009||Prepared: 10 June 2009|