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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

70

 

(a)   

must state the enforcement authority’s grounds for believing that

subsections (3) and (4) are satisfied;

(b)   

must state the date and time from which the prohibition is to take effect

(which may be a time on the date of the notice but must allow a period

for compliance which is reasonable in all the circumstances of the case);

5

(c)   

may require the person to take such steps as the authority considers

appropriate to ensure that the cessation of the activity takes place

safely.

(7)   

Except in a case falling within subsection (9), a stop notice—

(a)   

ceases to have effect at the end of the period of 7 days (or such shorter

10

period as may be specified in the notice) beginning with the date on

which the prohibition takes effect, but

(b)   

may be renewed for a period specified in a further notice.

(8)   

A stop notice may be renewed more than once under subsection (7)(b), but not

so that it has effect for an aggregate period exceeding 35 days.

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(9)   

If a stop notice relating to a licensable marine activity is issued to a person who

does not hold a marine licence authorising that activity, the stop notice may

remain in force until such time (if any) as such a licence is granted to that

person.

103     

Further provision as to stop notices

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(1)   

Any stop notice issued by an enforcement authority—

(a)   

must be served on any person carrying on, or in control of, the activity

to which the notice relates, and

(b)   

if a marine licence has been granted in relation to that activity, may also

be served on the licensee.

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(2)   

An enforcement authority may by a further notice—

(a)   

revoke a stop notice;

(b)   

vary a stop notice so as to substitute a later date for the date specified

in accordance with section 102(6)(b).

(3)   

A person who fails to comply with a stop notice commits an offence.

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(4)   

A person guilty of an offence under subsection (3) is liable—

(a)   

on summary conviction, to a fine not exceeding £50,000;

(b)   

on conviction on indictment, to a fine or to imprisonment for a term not

exceeding two years or to both.

104     

Emergency safety notices

35

(1)   

This section applies if it appears to an enforcement authority that serious

interference with legitimate uses of the sea is occurring, or is likely to occur, in

its area as a result of—

(a)   

any works for the carrying out of which a marine licence is or was

needed, or

40

(b)   

any substantial and unforeseen change in the state or position of any

such works.

(2)   

The enforcement authority may issue a notice (an “emergency safety notice”)

to any person who is in control of the works to which the notice relates.

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

71

 

(3)   

By issuing an emergency safety notice to a person, the enforcement authority

imposes on that person such requirements as are prescribed in the notice with

respect to any of the matters specified in subsection (4).

(4)   

Those matters are—

(a)   

the provision of lights, signals or other aids to navigation;

5

(b)   

the stationing of guard ships.

(5)   

An emergency safety notice (in addition to specifying the requirements which

it imposes)—

(a)   

must state the enforcement authority’s grounds for believing that

serious interference with legitimate uses of the sea is occurring or is

10

likely to occur,

(b)   

must state the date and time from which the requirements are to take

effect (which may be a time on the date of the notice but must allow a

period for compliance which is reasonable in all the circumstances of

the case), and

15

(c)   

may require the person to take such steps as the authority considers

appropriate to ensure that compliance with the requirements takes

place safely.

105     

Further provision as to emergency safety notices

(1)   

An emergency safety notice issued by an enforcement authority must be

20

served on each of the following—

(a)   

if a marine licence has been granted authorising the carrying out of the

works, the licensee,

(b)   

if there is in effect a stop notice which relates to the works, any person

on whom the stop notice was served.

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(2)   

An enforcement authority may by a further notice—

(a)   

revoke an emergency safety notice;

(b)   

vary an emergency safety notice so as to substitute a later date for the

date specified in accordance with section 104(5)(b).

(3)   

A person who fails to comply with an emergency safety notice commits an

30

offence.

(4)   

A person guilty of an offence under subsection (3) is liable—

(a)   

on summary conviction, to a fine not exceeding £50,000;

(b)   

on conviction on indictment, to a fine or to imprisonment for a term not

exceeding two years or to both.

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Other powers

106     

Power to take remedial action

(1)   

This section applies if it appears to the appropriate licensing authority for an

area that a licensable marine activity has been carried on in its area otherwise

than under a licence and in accordance with its conditions.

40

(2)   

The authority may carry out any works that appear to it to be necessary or

expedient for any one or more of the following purposes—

(a)   

protecting the environment;

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

72

 

(b)   

protecting human health;

(c)   

preventing interference with legitimate uses of the sea;

(d)   

preventing or minimising, or remedying or mitigating the effects of,

any harm or interference falling within subsection (3);

(e)   

restoring (whether in whole or in part) the condition of any place

5

affected by any such harm or interference to the condition, or a

condition reasonably similar to the condition, in which the place would

have been had the harm or interference not occurred.

(3)   

The harm or interference mentioned in subsection (2)(d) and (e) is any of the

following which has been, is being, or is likely to be, caused by the carrying on

10

of the licensable marine activity—

(a)   

harm to the environment;

(b)   

harm to human health;

(c)   

interference with legitimate uses of the sea.

107     

Power to test, and charge for testing, certain substances

15

(1)   

A licensing authority may, at the request of any person, conduct tests for the

purpose of ascertaining the probable effect on the marine environment of using

any of the following substances—

(a)   

any marine chemical treatment substance;

(b)   

any marine oil treatment substance;

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(c)   

any marine surface fouling cleaner.

(2)   

In this section—

“marine chemical treatment substance” means any substance used or

intended to be used for treating chemicals—

(a)   

on the surface of the sea or of the sea bed;

25

(b)   

in the case of a wash-off substance, on any surface of a marine

structure;

“marine oil treatment substance” means any substance used or intended

to be used for treating oil on the surface of the sea;

“marine surface fouling cleaner” means any substance used or intended

30

to be used for removing surface fouling matter—

(a)   

from the surface of the sea or of the sea bed;

(b)   

in the case of a wash-off substance, from any surface of a marine

structure or vessel at times when the structure or vessel is in the

sea or on the sea bed;

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“surface fouling matter” means any fouling, and includes, in particular,—

(a)   

any algae;

(b)   

any surface oil or chemical residue;

“surface oil or chemical residue” means any residual matter on a surface

after the removal, or substantial removal, of any oil or chemical

40

(whether by natural processes, or by treatment, or in any other way);

“wash-off substance”, in relation to a marine structure or vessel, means

any substance which, if used on a surface of the marine structure or

vessel, will or might (whether in whole or to a significant extent)—

(a)   

be removed from that surface, and

45

(b)   

be deposited in the sea,

whether by natural processes, or by treatment, or in any other way.

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

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(3)   

A licensing authority may recover any expenses reasonably incurred in

conducting any tests under subsection (1) from any person at whose request

those tests were conducted.

Appeals against notices under this Part

108     

Appeals against notices

5

(1)   

The appropriate licensing authority must by regulations make provision for

any person to whom a notice is issued under section 72, 90, 91, 102 or 104 to

appeal against that notice.

(2)   

The regulations required by subsection (1) must come into force on the day on

which this Part comes into force.

10

(3)   

Regulations under this section may include—

(a)   

provision as to the procedure to be followed with respect to an appeal;

(b)   

provision suspending the notice pending determination of the appeal;

(c)   

provision as to the powers of any person to whom the appeal is made;

(d)   

provision as to how any sum payable in pursuance of a decision of that

15

person is to be recoverable.

Offences: supplementary provision

109     

General defence of due diligence

(1)   

In any proceedings for an offence under this Part, it is a defence for the person

charged (“the defendant”) to prove that the defendant took all reasonable

20

precautions and exercised all due diligence to avoid the commission of the

offence.

(2)   

The defence provided by subsection (1) is to be taken to be established if the

defendant—

(a)   

acted under an employer’s instructions,

25

(b)   

did not know and had no reason to suppose that the acts done

constituted a contravention of the provision in question, and

(c)   

took all such steps as reasonably could be taken to ensure that no

offence would be committed.

(3)   

The defence provided by subsection (1) is to be taken to be established if the

30

defendant—

(a)   

acted in reliance on information supplied by another person,

(b)   

did not know and had no reason to suppose that the information was

false or misleading, and

(c)   

took all such steps as reasonably could be taken to ensure that no

35

offence would be committed.

(4)   

Subsections (2) and (3) do not affect the generality of subsection (1).

(5)   

If in any case the defence provided by subsection (1) involves the allegation

that the commission of the offence was due to—

(a)   

an act or default of another person (other than the giving of instructions

40

to the defendant by an employer), or

(b)   

reliance on information supplied by another person,

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

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the defendant is not, without leave of the court, entitled to rely on that defence

unless the requirement in subsection (6) is satisfied.

(6)   

The requirement is that—

(a)   

at least seven clear days before the hearing, and

(b)   

if the defendant has previously appeared before a court in connection

5

with the alleged offence, within one month of the first such appearance,

   

the defendant has served on the prosecutor a notice giving such information

identifying or assisting in the identification of that other person as was then in

the defendant’s possession.

110     

Offences: jurisdiction

10

Proceedings for an offence under this Part may be taken, and the offence may

for all incidental purposes be treated as having been committed, in any part of

the United Kingdom.

Application to the Crown

111     

Application to the Crown

15

(1)   

The provisions of this Part bind the Crown.

   

This is subject to the following provisions of this section.

(2)   

No contravention by the Crown of any provision of this Part is to make the

Crown criminally liable; but the High Court or, in Scotland, the Court of

Session may, on the application of the appropriate licensing authority or any

20

other authority charged with enforcing that provision, declare unlawful any

act or omission of the Crown which constitutes such a contravention.

(3)   

Despite subsection (2), the provisions of this Part apply to persons in the public

service of the Crown as they apply to other persons.

(4)   

The Secretary of State may certify that it appears to the Secretary of State that,

25

as respects—

(a)   

any Crown land specified in the certificate, and

(b)   

any powers of entry so specified which are exercisable in relation to

that land,

   

it is necessary or expedient that, in the interests of national security, the powers

30

should not be exercisable in relation to the land.

(5)   

If the Secretary of State issues a certificate under subsection (4), the powers

specified in the certificate are not exercisable in relation to the land so specified.

(6)   

For the purposes of subsection (4) “Crown land” means land held or used by

or on behalf of the Crown.

35

(7)   

Nothing in this section is to be taken as in any way affecting Her Majesty in her

private capacity or in right of Her Duchy of Lancaster, or the Duke of Cornwall.

Consequential and transitional provision

112     

Amendments and transitional provision

(1)   

Schedule 8 (which makes minor and consequential amendments) has effect.

40

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

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(2)   

Schedule 9 (which makes transitional provision) has effect.

Interpretation

113     

The appropriate licensing authority

(1)   

This section has effect for determining who is the appropriate licensing

authority for any area (and any licensable marine activity carried on in that

5

area).

(2)   

In relation to the Scottish offshore region, the appropriate licensing authority

is—

(a)   

the Secretary of State, as respects anything done in the course of

carrying on an activity falling within subsection (3);

10

(b)   

except as provided by paragraph (a), the Scottish Ministers.

(3)   

The activities are—

(a)   

any activity relating to a matter which is a reserved matter by virtue of

Section D2 (oil and gas) of Schedule 5 to the Scotland Act 1998 (c. 46)

(but see also section 77 above (this Part not to apply to certain oil and

15

gas etc activities));

(b)   

any activity relating to a matter which is a reserved matter by virtue of

paragraph 9 in Part 1 of that Schedule (defence);

(c)   

any activity falling within the subject matter of Part 6 of the Merchant

Shipping Act 1995 (c. 21) (pollution etc).

20

(4)   

In relation to Wales and the Welsh inshore region, the appropriate licensing

authority is—

(a)   

the Secretary of State, as respects anything done in the course of

carrying on an activity falling within subsection (5);

(b)   

except as provided by paragraph (a), the Welsh Ministers.

25

(5)   

The activities are—

(a)   

any activity concerning or arising from the exploration for, or

production of, petroleum (but see also section 77 (this Part not to apply

to certain oil and gas etc activities));

(b)   

any defence activity other than an excepted activity.

30

   

Subsection (9) supplements this subsection.

(6)   

In relation to Northern Ireland and the Northern Ireland inshore region, the

appropriate licensing authority is—

(a)   

the Secretary of State, as respects anything done in the course of

carrying on an activity falling within subsection (7);

35

(b)   

except as provided by paragraph (a), the Department of the

Environment in Northern Ireland.

(7)   

The activities are any activities which relate to a matter which is an excepted

matter by virtue of paragraph 4 of Schedule 2 to the Northern Ireland Act 1998

(c. 47) (defence of the realm etc).

40

(8)   

In relation to any area not mentioned in subsection (2), (4) or (6), the

appropriate licensing authority is the Secretary of State.

(9)   

In subsection (5)—

“defence activity” means any activity relating to—

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

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(a)   

the defence of the realm;

(b)   

the naval, military or air forces of the Crown, including reserve

forces;

(c)   

visiting forces;

(d)   

international headquarters and defence organisations;

5

(e)   

trading with the enemy and enemy property;

“excepted activity” means the exercise of civil defence functions by any

person otherwise than as a member of—

(a)   

any force or organisation referred to in paragraph (b) to (d) of

the definition of “defence activity”, or

10

(b)   

any other force or organisation established or maintained for

the purposes of, or for purposes connected with, the defence of

the realm;

“petroleum” has the same meaning as in Part 3 of the Petroleum Act 1998

(c. 17) (see section 28(1) of that Act).

15

114     

Meaning of “enforcement authority”

(1)   

This section has effect for determining who is an enforcement authority for any

area.

(2)   

For the purposes of sections 90 to 97 and 102 to 105 (and any other provisions

of this Part so far as relating to those sections) the appropriate licensing

20

authority for any area is an enforcement authority for that area.

(3)   

For the purposes of sections 90, 92 (so far as relating to section 90) and 102 to

105 (and any other provisions of this Part (except sections 91 and 93 to 97) so

far as relating to those sections) each of the following persons is also an

enforcement authority—

25

(a)   

in relation to the relevant enforcement area (within the meaning of

section 231), any marine enforcement officer (as defined in section 230);

(b)   

in relation to the relevant enforcement area (within the meaning of

section 235), any person appointed under section 235;

(c)   

in relation to the relevant enforcement area (within the meaning of

30

section 236), any person appointed under section 236;

(d)   

in relation to the Scottish offshore region, any person appointed under

section 237.

(4)   

A person is an enforcement authority by virtue of subsection (3) (so far as

relating to the sections specified in that subsection) only to the extent that the

35

person may exercise powers for the purposes of enforcing this Part.

115     

Interpretation of this Part

(1)   

In this Part—

“appropriate enforcement authority”, in the case of any area and any

provision of this Part, means any authority which is an enforcement

40

authority for that area for the purposes of that provision;

“the appropriate licensing authority” has the meaning given by section

113;

“British aircraft” means an aircraft registered in the United Kingdom;

 
 

 
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