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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments

258

 

(e)   

omit the definitions of “United Kingdom waters” and “United

Kingdom controlled waters”.

The Government of Wales Act 2006

3     (1)  

In Schedule 3 to the Government of Wales Act 2006 (c. 32) (transfer etc of

functions: further provisions) paragraph 4 (power to direct that certain

5

functions exercisable by a Minister of the Crown are exercisable in relation

to Welsh controlled waters only after consultation with the Welsh Ministers)

is amended as follows.

      (2)  

In sub-paragraph (1) (which extends the power conferred by section 58(1)(c)

of that Act and specifies the enactments to which it applies)—

10

(a)   

omit paragraph (a) (Part 2 of the Food and Environment Protection

Act 1985 (c. 48)), and

(b)   

after paragraph (b) insert—

“(c)   

the provisions of Parts 4 and 8 of the Marine and

Coastal Access Act 2009 (marine licensing and

15

enforcement) specified in sub-paragraph (1A), or

(d)   

regulations under section 73 of that Act (appeals),”.

      (3)  

After sub-paragraph (1) insert—

   “(1A)  

The provisions of the Marine and Coastal Access Act 2009

mentioned in sub-paragraph (1)(c) are—

20

(a)   

sections 67(1) to (5), 69(1), (3) and (4), 71(1) to (3) and 72(1)

to (3) (marine licences), so far as relating to items 1 to 6 and

11 to 13 in section 66(1) of that Act (licensable marine

activities);

(b)   

section 101 (registers);

25

(c)   

sections 106 and 91(7)(c) (power to take remedial action,

and power to require payment of sum representing

reasonable expenses of taking such action);

(d)   

section 107 (power to test, and charge for testing, certain

substances);

30

(e)   

sections 230(3) and 235(1)(c) (enforcement officers).”.

The Planning Act 2008

4     (1)  

The Planning Act 2008 (c. 29) is amended as follows.

      (2)  

After section 149 insert—

“149A   

 Deemed consent under a marine licence

35

(1)   

An order granting development consent may include provision

deeming a marine licence to have been issued under Part 4 of the

Marine and Coastal Access Act 2009 (marine licensing) for any

activity only if the activity is to be carried out wholly in one or more

of the areas specified in subsection (2).

40

(2)   

The areas are—

(a)   

England,

(b)   

waters adjacent to England up to the seaward limits of the

territorial sea,

 
 

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments

259

 

(c)   

an exclusive economic zone, except any part of an exclusive

economic zone in relation to which the Scottish Ministers

have functions,

(d)   

a Renewable Energy Zone, except any part of a Renewable

Energy Zone in relation to which the Scottish Ministers have

5

functions,

(e)   

an area designated under section 1(7) of the Continental Shelf

Act 1964, except any part of that area which is within a part

of an exclusive economic zone or Renewable Energy Zone in

relation to which the Scottish Ministers have functions.

10

(3)   

Subsections (4) and (5) apply if an order granting development

consent includes provision—

(a)   

deeming a marine licence to have been granted under Part 4

of the Marine and Coastal Access Act 2009 subject to specified

conditions, and

15

(b)   

deeming those conditions to have been attached to the

marine licence by the Secretary of State under that Part.

(4)   

A person who fails to comply with such a condition does not commit

an offence under section 161 of this Act.

(5)   

Sections 68 (notice of applications) and 69(3) and (5)

20

(representations) of the Marine and Coastal Access Act 2009 do not

apply in relation to the deemed marine licence.”.

      (3)  

In section 161 (breach of terms of order granting development consent), in

subsection (2), for “sections 148(4) and 149(4)” substitute “section 149A(4)”.

      (4)  

In Schedule 4, in paragraph 1(11) (power to correct certain errors or

25

omissions in development consent decisions) for the words from “any of

paragraphs” to the end of the sub-paragraph substitute “paragraph 30A or

30B of Schedule 5 (deemed marine licence under Marine and Coastal Access

Act 2009).”.

      (5)  

In Schedule 5 (provision relating to, or to matters ancillary to, development)

30

after paragraph 30 insert—

“30A       

Deeming a marine licence under Part 4 of the Marine and Coastal

Access Act 2009 to have been given by the Secretary of State for

activities specified in the order and subject to such conditions as

may be specified in the order.

35

30B        

Deeming any such conditions to have been attached to the marine

licence by the Secretary of State under that Part.”.

      (6)  

In Schedule 6 (changes to, and revocation of, orders granting development

consent) in—

(a)   

paragraph 2(13) (power to make non-material changes to

40

development consent order not to apply in relation to deemed

consents and licences), and

(b)   

paragraph 5(6) (power to change or revoke development consent

order not to apply in relation to deemed consents and licences),

           

for the words from “any of paragraphs” to the end of the sub-paragraph

45

substitute “paragraph 30A or 30B of Schedule 5 (deemed marine licence

under Marine and Coastal Access Act 2009).”.

 
 

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 2 — Other amendments

260

 

      (7)  

The following provisions cease to have effect—

(a)   

section 148 (deemed consent under section 34 of the Coast Protection

Act 1949 (c. 74)),

(b)   

section 149 (deemed consent under Part 2 of the Food and

Environment Protection Act 1985 (c. 48)),

5

(c)   

in Schedule 5, paragraphs 27 to 30 (which relate to deemed consents).

Part 2

Other amendments

The Food and Environment Protection Act 1985

Electronic communications apparatus: operations in tidal waters etc

10

5         

In the Food and Environment Protection Act 1985 after section 8 (licences)

insert—

“8A     

Electronic communications apparatus: operations in tidal waters etc

(1)   

The Scottish Ministers must not issue a licence to carry out any

operation which amounts to, or involves the exercise of, a right

15

conferred by paragraph 11 of the electronic communications code set

out in Schedule 2 to the Telecommunications Act 1984 unless they

are satisfied that adequate compensation arrangements have been

made.

(2)   

For the purposes of subsection (1) “adequate compensation

20

arrangements” are adequate arrangements for compensating any

persons—

(a)   

who appear to the Scottish Ministers to be owners of interests

in the tidal water or lands on, under or over which the right

is to be exercised,

25

(b)   

for any loss or damage sustained by those persons in

consequence of the operation being carried out.”.

Electronic communications: emergency works

6     (1)  

Section 9 of the Food and Environment Protection Act 1985 (offences relating

to the licensing system) is amended as follows.

30

      (2)  

In subsection (1) (which is expressed to be subject to certain later

subsections) in the words preceding paragraph (a), before “below” insert

“and (8)”.

      (3)  

After subsection (7) insert—

“(8)   

It shall be a defence for a person charged with an offence under

35

subsection (1) in relation to any operation to prove that—

(a)   

for the purposes of paragraph 23 of the electronic

communications code (undertaker’s works), the person is the

operator or a relevant undertaker, and

(b)   

the activity was carried out for the purpose of executing

40

emergency works, within the meaning of that code.

   

In this subsection “the electronic communications code” means the

code set out in Schedule 2 to the Telecommunications Act 1984.”.

 
 

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 2 — Other amendments

261

 

The Petroleum Act 1998

Application of Part 3 in relation to submarine pipelines

7     (1)  

Section 24 of the Petroleum Act 1998 (c. 17) (application of Part 3) is

amended as follows.

      (2)  

After subsection (2) insert—

5

“(2A)   

If a pipeline—

(a)   

is specified in an order made by the Secretary of State under

this subsection, or

(b)   

is of a description so specified,

   

the pipeline shall be disregarded for the purposes of this Part of this

10

Act (other than this subsection) or shall be so disregarded while any

specified condition is satisfied.”.

      (3)  

After subsection (3) insert—

“(3A)   

The Secretary of State may by order provide that specified provisions

of this Part of this Act shall apply, subject to such modifications (if

15

any) as are specified, in relation to a controlled pipeline—

(a)   

which is specified or of a specified description, and

(b)   

which meets the conditions in subsection (3B).

(3B)   

The conditions are—

(a)   

that the pipeline is used in connection with exploration for, or

20

exploitation of, petroleum, or the importation of petroleum

into the United Kingdom;

(b)   

that, by virtue of the date when construction of the pipeline

was begun, section 14(1)(b) would not apply in relation to use

of the pipeline but for an order under this subsection.”.

25

      (4)  

In subsection (5) (negative resolution procedure) after “an order under

subsection (2)” insert “, (2A) or (3A)”.

      (5)  

Any authorisation issued under section 14(1)(b) of the Petroleum Act 1998

(use of certain pipelines) continues to have effect notwithstanding the

provisions of any order under section 24(2A) of that Act.

30

      (6)  

Where an order under subsection (3A) of section 24 of the Petroleum Act

1998 comes into force in relation to a pipeline, the Secretary of State must

grant an authorisation under section 14(1)(b) of that Act in respect of the

conveyance, on and after the day on which the order comes into force, of any

substances for which the pipeline was normally used before the coming into

35

force of the order.

      (7)  

Sub-paragraph (6) is without prejudice to the provision that may be

included in the authorisation with respect to information to be provided by

the owner of the pipeline.

Exception of certain pipelines from being “submarine pipelines” for the purposes of Part 4

40

8     (1)  

Section 45 of the Petroleum Act 1998 (interpretation of Part 4) is amended as

follows.

 
 

Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 2 — Coast Protection Act 1949

262

 

      (2)  

In the definition of “submarine pipeline”, after the paragraphs, insert—

   

“but does not include any such pipeline which, by virtue of an order

under subsection (2A) of section 24, is to be disregarded for the

purposes of Part 3 of this Act (other than that subsection).”.

Schedule 9

5

Section 112(2)

 

Licensing: transitional provision relating to Part 4

Part 1

Interpretation

1          

In this Schedule—

“the commencement date” means the date on which section 65 comes

10

into force;

“the CPA” means the Coast Protection Act 1949 (c. 74);

“FEPA” means the Food and Environment Protection Act 1985 (c. 48).

Part 2

Coast Protection Act 1949

15

Consents previously given and outstanding applications

2     (1)  

Any consent given under subsection (1) of section 34 of the CPA which—

(a)   

is in effect immediately before the commencement date, and

(b)   

relates to an operation which—

(i)   

falls within that subsection, and

20

(ii)   

is a licensable marine activity,

           

has effect on and after that date as if it were a marine licence granted by the

appropriate licensing authority in relation to that activity (a “deemed

licence”).

      (2)  

In accordance with sub-paragraph (1)—

25

(a)   

a consent given for a specified period remains in force (subject to the

provisions of this Part of this Act) for so much of that period as falls

after the commencement date;

(b)   

any condition subject to which a consent under subsection (1) of

section 34 of the CPA has been given has effect as if it were a

30

condition attached to the deemed licence;

(c)   

any provision made under subsection (4) of that section in respect of

a consent has effect as if it were provision made under section

71(4)(a) of this Act in respect of the deemed licence;

(d)   

any condition having effect under section 34(4A)(b) of the CPA has

35

effect as if it were such a condition as is mentioned in section 71(5) of

this Act.

      (3)  

Any reference in sub-paragraph (1) or (2) to a consent given under section

34(1) of the CPA, or to a condition subject to which such a consent is given,

includes a reference to a consent deemed to have been given, or a condition

40

deemed to have been imposed, by virtue of provision included in an order

 
 

Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 3 — Food and Environment Protection Act 1985

263

 

granting development consent (see paragraphs 27 and 28 of Schedule 5 to

the Planning Act 2008 (c. 29).

      (4)  

Any application for consent under subsection (1) of section 34 of the CPA

which—

(a)   

is made before the commencement date, and

5

(b)   

relates to an operation which—

(i)   

falls within that subsection, and

(ii)   

is a licensable marine activity,

           

has effect on and after that date as if it were an application for a marine

licence made to the appropriate licensing authority in relation to that

10

activity.

Safety requirements

3          

The repeal of section 36A of the CPA does not affect the operation of that

provision in relation to anything occurring before the date on which that

repeal takes effect.

15

Part 3

Food and Environment Protection Act 1985

Licences previously issued and outstanding applications

4     (1)  

Any licence having effect under Part 2 of FEPA (a “FEPA licence”) which—

(a)   

is in effect immediately before the commencement date, and

20

(b)   

relates to the doing of anything which—

(i)   

falls within section 5 or 6 of that Act, and

(ii)   

is an activity which, on or after that date, must not be carried

on except in accordance with a marine licence granted by the

appropriate licensing authority,

25

           

has effect on and after that date as if it were a marine licence granted by the

appropriate licensing authority in relation to that activity (a “deemed

licence”).

      (2)  

In accordance with sub-paragraph (1)—

(a)   

a licence issued for a specified period remains in force (subject to the

30

provisions of this Part of this Act) for so much of that period as falls

after the commencement date;

(b)   

any provision included in a FEPA licence by virtue of section 8(3) or

(4) of that Act has effect as if it were a condition attached to the

deemed licence.

35

      (3)  

Any reference in sub-paragraph (1) or (2) to a FEPA licence, or to a provision

included in such a licence, includes a reference to a licence deemed to have

been issued, or a provision deemed to have been included, by virtue of

provision included in a order granting development consent (see

paragraphs 29 and 30 of Schedule 5 to the Planning Act 2008 (c. 29).

40

      (4)  

Any application for a FEPA licence which—

(a)   

was made before the commencement date, and

(b)   

relates to an activity which—

(i)   

falls within section 5 or 6 of FEPA, and

 
 

Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 3 — Food and Environment Protection Act 1985

264

 

(ii)   

on or after that date, must not be carried on except in

accordance with a marine licence granted by the appropriate

licensing authority,

           

has effect on and after that date as if it were an application for a marine

licence made to the appropriate licensing authority in relation to that

5

activity.

      (5)  

An applicant who has paid a fee under section 8(7) or (8) of FEPA must not

be charged a fee under section 67(1)(b) of this Act in respect of the deemed

licence.

5     (1)  

Despite the amendments made by paragraph 2 of Schedule 8, paragraphs 5

10

to 17 of Schedule 3 to FEPA continue to apply in any case where a person—

(a)   

makes written representations (in accordance with paragraph 5 of

that Schedule) before the commencement date, or

(b)   

within the period of 28 days ending with that date, is issued with a

FEPA licence or receives notice under paragraph 1, 3 or 4 of that

15

Schedule.

      (2)  

Sub-paragraph (1) has effect in place of any provision made under section 73

of this Act for appeals against any decision of an appropriate licensing

authority on an application for a licence.

Remedial action

20

6         

The amendments made by paragraph 2 of Schedule 8 do not affect the

operation of section 10 of FEPA in relation to anything carried out otherwise

than under and in accordance with a FEPA licence before the

commencement date.

Register

25

7     (1)  

This paragraph applies in any case where—

(a)   

immediately before the commencement date, an authority was

required to maintain under section 14 of FEPA a register (the “FEPA

register”) containing information of any particular description in

respect of any particular area,

30

(b)   

on that date the authority ceased to be required to maintain a register

under that section containing information of that description in

respect of that area, and

(c)   

as from that date the authority is required to maintain a register

under section 101 of this Act (the “new register”) containing

35

information in respect of that area.

      (2)  

In any such case, the authority must include in the new register any

information falling within sub-paragraph (1)(a) that was contained (or was

required to have been contained) in the FEPA register immediately before

the commencement date.

40

      (3)  

For the purpose of giving effect to this paragraph—

(a)   

references in section 101 to marine licences are to be read as

including references to FEPA licences, and

(b)   

references in that section to this Part of this Act or to any provision

of this Part are to be read as including references to Part 2 of FEPA or

45

to the corresponding provision of that Part.

 
 

 
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