Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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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.