Marine and Coastal Access Bill [HL]

House of Lords

Session 2008 - 09
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Other Bills before Parliament

Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest
258

4
Any provision of this Chapter which—
(a)
confers any function on the MMO, and
(b)
comes into force before the date on which section 1 of this Act comes
into force,

has effect until that date as if it conferred that function on the Secretary of
5
State.
5
Until the coming into force of the first Order in Council made under section
39 (the exclusive economic zone), the reference in section 113(2)(b) to the
exclusive economic zone is to be read as a reference to a renewable energy
zone.
10
Schedule 13
Section 144

Marine boundaries of SSSIs and national nature reserves
Part 1
Introductory
1
In this Schedule “the 1981 Act” means the Wildlife and Countryside Act 1981
15
(c. 69).
Part 2
Sites of special scientific interest
Marine boundaries of sites of special scientific interest
2     (1)
Section 28 of the 1981 Act (sites of special scientific interest) is amended as
20
follows.
      (2)
In subsection (1)(a) after “the local planning authority” insert “(if any)”.
      (3)
After subsection (1) insert—
“(1A)
The reference in subsection (1) to land includes—
(a)
any land lying above mean low water mark;
25
(b)
any land covered by estuarial waters.
(1B)
Where the area of land to which a notification under subsection (1)
relates includes land falling within subsection (1A)(a) or (b) (“area
A”), it may also include land not falling within subsection (1A)(a) or
(b) (“area B”) if—
30
(a)
area B adjoins area A, and
(b)
any of the conditions in subsection (1C) is satisfied.
(1C)
The conditions are—
(a)
that the flora, fauna or features leading to the notification of
area A is or are also present in area B;
35
(b)
that the notification of area A is by reason of any flora or
fauna which are dependent (wholly or in part) on anything
which takes place in, or is present in, area B;

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest
259

(c)
that, without the inclusion of area B, the identification of the
boundary of the land notified (either in the notification or on
the ground for the purposes of exercising functions in
relation to it) would be impossible or impracticable.”
      (4)
In subsection (2) for “that fact” substitute “the fact mentioned in subsection
5
(1)”.
      (5)
In subsection (5) (confirmation of notification of SSSIs) after paragraph (b)
insert—

“In the case of a notification given in relation to land lying below
mean low water mark by virtue of subsection (1B), this subsection is
10
subject to section 28CB(4) and (6).”
      (6)
After subsection (9) insert—
“(9A)
For the purposes of this Part “estuarial waters” means any waters
within the limits of transitional waters, within the meaning of the
Water Framework Directive (that is to say, Directive 2000/60/EC of
15
the European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of water
policy).”
      (7)
No notification under subsection (1) of that section made before the coming
into force of this paragraph may be questioned in legal proceedings on the
20
ground that the area of land to which the notification relates includes land
lying below mean low water mark.
3
In section 28A of the 1981 Act (variation of notification under section 28), in
subsection (3)(a) after “the local planning authority” insert “(if any)”.
4
In section 52(1) of the 1981 Act (interpretation of Part 2), after the definition
25
of “agricultural land” insert—
““estuarial waters” has the meaning given by section 28(9A);”.
Notification of additional land that is subtidal
5     (1)
Section 28B of the 1981 Act (notification of additional land) is amended as
follows.
30
      (2)
In subsection (2)(a) after “the local planning authority” insert “(if any)”.
      (3)
After subsection (2) insert—
“(2A)
The reference in subsection (1) to land includes—
(a)
any land lying above mean low water mark;
(b)
any land covered by estuarial waters.
35
(2B)
If any of the conditions in subsection (2C) is satisfied, the extra land
may consist of or include an area of land not falling within
subsection (2A)(a) or (b).
(2C)
The conditions are—
(a)
that the flora, fauna or features that led to the notification of
40
the SSSI is or are also present in the area of the extra land not
falling within subsection (2A)(a) or (b);

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest
260

(b)
that the notification of the SSSI is by reason of any flora or
fauna which are dependent (wholly or in part) on anything
which takes place in, or is present in, that area;
(c)
that, without the inclusion of that area, the identification of
the boundary of the SSSI (either in the notification or on the
5
ground for the purposes of exercising functions in relation to
it) is impossible or impracticable.”
      (4)
In subsection (3) for “such notification” substitute “notification under
subsection (2)”.
      (5)
In subsection (7) (application of section 28(5) to (7) in relation to notifications
10
under section 28B)—
(a)
after ““subsection (1)”” insert “and “subsection (1B)””;
(b)
for “of this section” (in the second place where it occurs) substitute
“and subsection (2B) of this section respectively”.
      (6)
No notification under subsection (2) of that section made before the coming
15
into force of this paragraph may be questioned in legal proceedings on the
ground that the area of land to which the notification relates consists of or
includes land lying below mean low water mark.
Enlargement of SSSI to include subtidal land
6     (1)
Section 28C of the 1981 Act (enlargement of SSSI) is amended as follows.
20
      (2)
In subsection (2)(a) after “the local planning authority” insert “(if any)”.
      (3)
After subsection (2) insert—
“(2A)
The reference in subsection (1) to land includes—
(a)
any land lying above mean low water mark;
(b)
any land covered by estuarial waters.
25
(2B)
If any of the conditions in subsection (2C) is satisfied, the area of land
to which a notification under subsection (2) relates may include an
area of land not falling within subsection (2A)(a) or (b).
(2C)
The conditions are—
(a)
that the flora, fauna or features that led to the notification of
30
the SSSI is or are also present in the area of land not falling
within subsection (2A)(a) or (b);
(b)
that the notification of the SSSI is by reason of any flora or
fauna which are dependent (wholly or in part) on anything
which takes place in, or is present in, that area;
35
(c)
that, without the inclusion of that area, the identification of
the boundary of the SSSI (either in the notification or on the
ground for the purposes of exercising functions in relation to
it) is impossible or impracticable.”
      (4)
In subsection (3) (application of section 28(2) to (8) in relation to notifications
40
under section 28C)—
(a)
for “and “subsection (1)(b)”” substitute “, “subsection (1)(b)” and
“subsection (1B)””;
(b)
for “and subsection (2)(b)” substitute “, subsection (2)(b) and
subsection (2B)”.
45

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 2 — Sites of special scientific interest
261

      (5)
No notification under subsection (2) of that section made before the coming
into force of this paragraph may be questioned in legal proceedings on the
ground that the area of land to which the notification relates includes land
lying below mean low water mark.
Guidance in relation to subtidal notifications of SSSIs
5
7
After section 28C of the 1981 Act insert—
“28CA
Guidance in relation to subtidal notifications of SSSIs
(1)
The ministerial authority may issue guidance to Natural England
about the exercise of the power conferred by section 28(1B), 28B(2B)
or 28C(2B) to give a notification under section 28(1), 28B(2) or 28C(2)
10
(as the case may be) in relation to land lying below mean low water
mark.
(2)
In this section and section 28CB “the ministerial authority” means—
(a)
in relation to England, the Secretary of State;
(b)
in relation to Wales, the Welsh Ministers.”
15
Power to call in subtidal notifications of SSSIs
8
After section 28CA of the 1981 Act (inserted by paragraph 7) insert—
“28CB
Power to call in subtidal notifications
(1)
This section applies where a notification under section 28(1), 28B(2)
or 28C(2) has been given in relation to land lying below mean low
20
water mark (“the subtidal land”) by virtue of section 28(1B), 28B(2B)
or 28C(2B) (as the case may be).
(2)
Natural England may not give notice under section 28(5)(b)
confirming the notification unless, at least 21 days before doing so,
they have given notice of their intention to the ministerial authority.
25

(For the meaning of “the ministerial authority”, see section 28CA.)
(3)
At any time before the notification is confirmed the ministerial
authority may give notice to Natural England that the ministerial
authority is considering whether to give a direction under subsection
(5) regarding the subtidal land.
30
(4)
If the ministerial authority gives notice under subsection (3), Natural
England may not give notice under section 28(5) until the ministerial
authority has given a direction under subsection (5).
(5)
The ministerial authority may direct—
(a)
that the notification (if confirmed) must include all of the
35
subtidal land;
(b)
that the notification (if confirmed) must not include any of
the subtidal land;
(c)
that the notification (if confirmed) must, or must not, include
such part of that land as is specified in the direction;
40
(d)
that the decision whether the notification (if confirmed)
should include the subtidal land is to be taken by Natural
England.

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 3 — National nature reserves
262

(6)
If the ministerial authority gives a direction under subsection (5),
Natural England must give notice under section 28(5)(a) or (b), in
accordance with that direction, within the period of three months
beginning with the date on which the direction is received by them.
(7)
The ministerial authority may, before deciding whether to give a
5
direction under subsection (5), give to any person the opportunity
of—
(a)
appearing before and being heard by a person appointed by
the ministerial authority for that purpose;
(b)
providing written representations to such a person.
10
(8)
A person appointed under subsection (7) must make a report to the
ministerial authority of any oral or written representations made
under that subsection.
(9)
The ministerial authority may make regulations providing for the
procedure to be followed (including decisions as to costs) at hearings
15
held under subsection (7).
(10)
The power to make regulations under subsection (9) is exercisable by
statutory instrument.
(11)
A statutory instrument containing regulations made under
subsection (9) by the Secretary of State shall be subject to annulment
20
in pursuance of a resolution of either House of Parliament.
(12)
A statutory instrument containing regulations made under
subsection (9) by the Welsh Ministers shall be subject to annulment
in pursuance of a resolution of the National Assembly for Wales.”
Denotification of SSSI on designation of area as MCZ
25
9     (1)
Section 28D of the 1981 Act (denotification) is amended as follows.
      (2)
In subsection (1) before “is not of special interest” insert “(a)” and after
“mentioned in section 28(1),” insert “or
(b)
should no longer be the subject of a notification under section
28(1) because that land has been designated as (or as part of)
30
a marine conservation zone under section 113 of the Marine
and Coastal Access Act 2009,”.
      (3)
In subsection (2)(a)—
(a)
after “the local planning authority” insert “(if any)”;
(b)
for “the land which Natural England no longer consider to be of
35
special interest” substitute “the land mentioned in subsection (1)”.
      (4)
In subsection (3) for “that fact” substitute “the fact mentioned in subsection
(1)(a) or (b)”.
Part 3
National nature reserves
40
Marine boundaries of national nature reserves
10    (1)
In section 35 of the 1981 Act (national nature reserves) after subsection (1)

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 3 — National nature reserves
263

insert—
“(1A)
The land which may be declared to be a national nature reserve in
England or Wales includes—
(a)
any land lying above mean low water mark;
(b)
any land covered by estuarial waters.
5
(1B)
Where the area of land to which a declaration under subsection (1)
relates includes land falling within subsection (1A)(a) or (b) (“area
A”), it may also include land not falling within subsection (1A)(a) or
(b) (“area B”) if—
(a)
area B adjoins area A, and
10
(b)
any of the conditions in subsection (1C) is satisfied.
(1C)
The conditions are—
(a)
that the flora, fauna or features leading to the management of
area A as a nature reserve is or are also present in area B;
(b)
that the management of area A as a nature reserve is by
15
reason of any flora or fauna which are dependent (wholly or
in part) on anything which takes place in, or is present in,
area B;
(c)
that, without the inclusion of area B, the identification of the
boundary of the land declared to be a national nature reserve
20
(either in the declaration or on the ground for the purposes of
exercising functions in relation to it) would be impossible or
impracticable.
(1D)
The ministerial authority may issue guidance to the appropriate
conservation body about the exercise of the power conferred by
25
subsection (1B) to make a declaration in relation to land lying below
mean low water mark.

“The ministerial authority” has the meaning given by section
35A(12).”.
      (2)
No declaration under subsection (1) of that section made before the coming
30
into force of this paragraph may be questioned in legal proceedings on the
ground that the area of land to which the declaration relates includes land
lying below mean low water mark.
Power to call in subtidal declarations of national nature reserves
11
After section 35 of the 1981 Act insert—
35
“35A
Power to call in subtidal declarations
(1)
This section applies where—
(a)
the appropriate conservation body propose to declare land to
be a national nature reserve under section 35(1), and
(b)
the land to which the proposed declaration relates includes,
40
by virtue of section 35(1B), land lying below mean low water
mark (“the subtidal land”).
(2)
The appropriate conservation body may not declare the reserve
unless, at least 21 days before doing so, they have given notice of
their intention to the ministerial authority.
45

Marine and Coastal Access Bill [HL]
Schedule 13 — Marine boundaries of SSSIs and national nature reserves
Part 3 — National nature reserves
264

(3)
At any time before the reserve is declared the ministerial authority
may give notice to the appropriate conservation body that the
ministerial authority is considering whether to give a direction
under subsection (5) regarding the subtidal land.
(4)
If the ministerial authority gives notice under subsection (3), the
5
appropriate conservation body may not declare the reserve until the
ministerial authority has given a direction under subsection (5).
(5)
The ministerial authority may direct—
(a)
that the reserve (if declared) must include all of the subtidal
land;
10
(b)
that the reserve (if declared) must not include any of the
subtidal land;
(c)
that the reserve (if declared) must, or must not, include such
part of that land as is specified in the direction;
(d)
that the decision whether the reserve (if declared) should
15
include the subtidal land is to be taken by the appropriate
conservation body.
(6)
The ministerial authority may, before deciding whether to give a
direction under subsection (5), give to any person the opportunity
of—
20
(a)
appearing before and being heard by a person appointed by
the ministerial authority for that purpose;
(b)
providing written representations to such a person.
(7)
A person appointed under subsection (6) must make a report to the
ministerial authority of any oral or written representations made
25
under that subsection.
(8)
The ministerial authority may make regulations providing for the
procedure to be followed (including decisions as to costs) at hearings
held under subsection (6).
(9)
The power to make regulations under subsection (9) is exercisable by
30
statutory instrument.
(10)
A statutory instrument containing regulations made under
subsection (9) by the Secretary of State shall be subject to annulment
in pursuance of a resolution of either House of Parliament.
(11)
A statutory instrument containing regulations made under
35
subsection (9) by the Welsh Ministers shall be subject to annulment
in pursuance of a resolution of the National Assembly for Wales.
(12)
In this section “the ministerial authority” means—
(a)
in relation to England, the Secretary of State;
(b)
in relation to Wales, the Welsh Ministers.”
40