Marine and Coastal Access Bill [HL]

House of Lords

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 4 — Implementation and effect
28

54
Directions under section 53: supplementary provisions
(1)
An authority which gives a direction under section 53 must publish the
direction in a way calculated to bring the direction to the attention of persons
likely to be interested in or affected by it.
(2)
For so long as a direction given and published under that section remains in
5
force, the designated functions are exercisable by or in relation to the public
body acting on behalf of the authority (and are not exercisable by or in relation
to the authority).
(3)
Subsection (2) is subject to any provision to the contrary which—
(a)
is made by the direction, or
10
(b)
is included in a direction under section 55.
(4)
A direction under section 53 may include—
(a)
such terms or conditions,
(b)
such obligations or requirements,
(c)
such financial provisions,
15

as the authority giving the direction may determine.
(5)
Directions under section 53 may make different provision for different cases,
different areas or different public bodies.
55
Directions to public bodies as regards performance of delegated functions
(1)
This section applies where any functions are exercisable by or in relation to a
20
public body by virtue of a direction given under section 53 by an authority.
(2)
The authority may from time to time give directions to the public body with
respect to the performance of the functions.
(3)
Before giving any such directions, the authority must consult the public body.
(4)
A public body to which directions are given under this section must comply
25
with the directions.
(5)
An authority which gives a direction under this section must publish the
direction in a manner likely to bring the direction to the attention of persons
likely to be interested in or affected by it.
Chapter 4
30
Implementation and effect
Decisions affected by an MPS or marine plan
56
Decisions affected by marine policy documents
(1)
A public authority must take any authorisation or enforcement decision in
accordance with the appropriate marine policy documents, unless relevant
35
considerations indicate otherwise.
(2)
If a public authority takes an authorisation or enforcement decision otherwise
than in accordance with the appropriate marine policy documents, the public
authority must state its reasons.

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 4 — Implementation and effect
29

(3)
A public authority must have regard to the appropriate marine policy
documents in taking any decision—
(a)
which relates to the exercise of any function capable of affecting the
whole or any part of the UK marine area, but
(b)
which is not an authorisation or enforcement decision.
5
(4)
An “authorisation or enforcement decision” is any of the following—
(a)
the determination of any application (whenever made) for
authorisation of the doing of any act which affects or might affect the
whole or any part of the UK marine area,
(b)
any decision relating to any conditions of such an authorisation,
10
(c)
any decision about extension, replacement, variation, revocation or
withdrawal of any such authorisation or any such conditions
(whenever granted or imposed),
(d)
any decision relating to the enforcement of any such authorisation or
any such conditions,
15
(e)
any decision relating to the enforcement of any prohibition or
restriction (whenever imposed) on the doing of any act, or of any act of
any description, falling within paragraph (a),

but does not include any decision on an application for an order granting
development consent under the Planning Act 2008 (c. 29) (relating to which
20
subsection (3) has effect accordingly).
(5)
In section 104(2) of the Planning Act 2008 (matters to which Panel or Council
must have regard in deciding application for order granting development
consent) after paragraph (a) insert—
“(aa)
the appropriate marine policy documents (if any), determined
25
in accordance with section 57 of the Marine and Coastal Access
Act 2009;”.
(6)
In this section—
“act” includes omission;
“appropriate marine policy document” is to be read in accordance with
30
section 57;
“authorisation” means any approval, confirmation, consent, licence,
permission or other authorisation (however described), whether
special or general.
57
The appropriate marine policy documents
35
(1)
This section has effect for the purpose of determining what are the appropriate
marine policy documents for a public authority taking a decision falling within
subsection (1) or (3) of section 56.
(2)
For that purpose—
(a)
subsection (3) has effect, subject to subsection (4), for determining
40
whether any marine plan is an appropriate marine policy document,
and
(b)
subsection (5) has effect for determining whether an MPS is an
appropriate marine policy document.
(3)
To the extent that the decision relates to a marine plan area, any marine plan in
45
force for that area is an appropriate marine policy document.

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 4 — Implementation and effect
30

(4)
A marine plan for an area in a devolved marine planning region is an
appropriate marine policy document in relation to the exercise of retained
functions by a public authority only if—
(a)
it contains a statement under section 49(7) that it includes provision
relating to retained functions,
5
(b)
it was adopted with the agreement of the Secretary of State under
paragraph 15(2) of Schedule 6, and
(c)
it was prepared and adopted at a time when an MPS was in effect which
governed marine planning for the marine planning region.
(5)
Any MPS which is in effect is an appropriate marine policy document for each
10
of the following public authorities—
(a)
any Minister of the Crown;
(b)
any government department;
(c)
any public authority, so far as carrying out functions in relation to the
English inshore region or the English offshore region;
15
(d)
any public authority, so far as carrying out retained functions in
relation to a devolved marine planning region;
(e)
any devolved policy authority which adopted the MPS and has not
withdrawn from it;
(f)
any public authority, so far as carrying out devolved functions in
20
relation to a marine planning region whose marine plan authority is a
policy authority which adopted the MPS.
(6)
For the purposes of subsection (5)(f)—
(a)
the Scottish Ministers shall be treated as if they were the marine plan
authority for the Scottish inshore region, and
25
(b)
the Department of the Environment in Northern Ireland shall be
treated as if it were the marine plan authority for the Northern Ireland
inshore region.
(7)
For the purposes of this Part “retained functions” means—
(a)
as respects the Scottish inshore region or the Scottish offshore region,
30
functions relating to reserved matters, within the meaning of the
Scotland Act 1998 (c. 46),
(b)
as respects the Welsh inshore region or the Welsh offshore region,
functions of a Minister of the Crown which have not been transferred
to the Welsh Ministers by or under the Government of Wales Act 2006
35
(c. 32),
(c)
as respects the Northern Ireland inshore region or the Northern Ireland
offshore region, functions relating to excepted or reserved matters,
within the meaning of the Northern Ireland Act 1998 (c. 47),

but this is subject to the exceptions provided by subsection (8).
40
(8)
The following are not retained functions—
(a)
as respects the Scottish inshore region or the Scottish offshore region,
any function exercisable by the Scottish Ministers or any other Scottish
public authority;
(b)
as respects the Welsh inshore region and the Welsh offshore region, any
45
function exercisable by the Welsh Ministers or any other Welsh public
authority;

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 4 — Implementation and effect
31

(c)
as respects the Northern Ireland inshore region or the Northern Ireland
offshore region, any function exercisable by a Northern Ireland
department or any other Northern Ireland public authority.
(9)
In this section—
“adopted”, in relation to an MPS, means adopted and published in
5
accordance with Schedule 5 (but see also section 46(4));
“devolved functions”, in relation to any marine planning region, means
any functions which are not retained functions as respects that region;
“devolved marine planning region” means any marine planning region
other than—
10
(a)
the English inshore region, and
(b)
the English offshore region;
“devolved policy authority” means—
(a)
the Scottish Ministers;
(b)
the Welsh Ministers;
15
(c)
the Department of the Environment in Northern Ireland;
“Northern Ireland public authority” means any public authority
exercising functions wholly or mainly in relation to any one or more of
the following—
(a)
Northern Ireland;
20
(b)
the Northern Ireland inshore region;
(c)
the Northern Ireland offshore region;
“Scottish public authority” means any public authority exercising
functions wholly or mainly in relation to any one or more of the
following—
25
(a)
Scotland;
(b)
the Scottish inshore region;
(c)
the Scottish offshore region;
“Welsh public authority” means any public authority exercising functions
wholly or mainly in relation to any one or more of the following—
30
(a)
Wales;
(b)
the Welsh inshore region;
(c)
the Welsh offshore region.
Monitoring and reporting
58
Monitoring of, and periodical reporting on, implementation
35
(1)
For so long as a marine plan is in effect, the marine plan authority must keep
under review each of the matters in subsection (2).
(2)
The matters are—
(a)
the effects of the policies in the marine plan;
(b)
the effectiveness of those policies in securing that the objectives for
40
which the marine plan was prepared and adopted are met;
(c)
the progress being made towards securing those objectives;
(d)
if an MPS governs marine planning for the marine plan authority’s
region, the progress being made towards securing that the objectives
for which the MPS was prepared and adopted are met in that region.
45

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 5 — Miscellaneous and general provisions
32

(3)
The marine plan authority must from time to time prepare and publish a report
on the matters kept under review pursuant to subsection (1).
(4)
After publishing a report under subsection (3), the marine plan authority must
decide whether or not to amend or replace the marine plan.
(5)
The first report must be published before the expiration of 3 years beginning
5
with the date on which the marine plan was adopted.
(6)
After the publication of the first report, successive reports must be published
at intervals of no more than 3 years following the date of publication of the
previous report.
(7)
Any reference in this section to the replacement of a marine plan is a reference
10
to—
(a)
preparing and adopting, in accordance with the provisions of this Part,
a fresh marine plan (whether or not for the identical marine plan area),
and
(b)
if the marine plan authority has not already done so, withdrawing the
15
marine plan that is to be replaced.
Chapter 5
Miscellaneous and general provisions
Validity of documents under this Part
59
Validity of marine policy statements and marine plans
20
(1)
This section applies to—
(a)
any MPS,
(b)
any amendment of an MPS,
(c)
any marine plan,
(d)
any amendment of a marine plan.
25
(2)
Anything falling within the paragraphs of subsection (1) is referred to in this
section as a “relevant document”.
(3)
A relevant document must not be questioned in any legal proceedings, except
in so far as is provided by the following provisions of this section.
(4)
A person aggrieved by a relevant document may make an application to the
30
appropriate court on any of the following grounds—
(a)
that the document is not within the appropriate powers;
(b)
that a procedural requirement has not been complied with.
(5)
Any such application must be made not later than 6 weeks after the publication
of the relevant document.
35

This does not apply if the application is to the Court of Session.
(6)
In this section—
“the appropriate court” means—
(a)
the High Court, if the relevant document is a marine plan, or an
amendment of a marine plan, for an area within the English
40
inshore region or the Welsh inshore region;

Marine and Coastal Access Bill [HL]
Part 3 — Marine planning
Chapter 5 — Miscellaneous and general provisions
33

(b)
in any other case, any superior court in the United Kingdom;
“the appropriate powers” means—
(a)
in the case of an MPS or an amendment of an MPS, the powers
conferred by Chapter 1 of this Part;
(b)
in the case of a marine plan or an amendment of a marine plan,
5
the powers conferred by—
(i)
Chapter 2 of this Part, or
(ii)
section 53 (delegation);
“procedural requirement” means any requirement—
(a)
under the appropriate powers, or
10
(b)
in directions under section 53 or 55,
which relates to the preparation, adoption or publication of a relevant
document;
“superior court in the United Kingdom” means any of the following—
(a)
the High Court;
15
(b)
the Court of Session.
60
Powers of the court on an application under section 59
(1)
This section applies in any case where an application under section 59 is made
to a court.
(2)
The court may make an interim order suspending the operation of the relevant
20
document—
(a)
wholly or in part,
(b)
generally or as it affects a particular area.

An interim order has effect until the proceedings are finally determined.
(3)
Subsection (4) applies if the court is satisfied as to any of the following—
25
(a)
that a relevant document is to any extent outside the appropriate
powers;
(b)
that the interests of the applicant have been substantially prejudiced by
failure to comply with a procedural requirement.
(4)
The court may—
30
(a)
quash the relevant document;
(b)
remit the relevant document to a body or person with a function
relating to its preparation, adoption or publication.
(5)
If the court remits the relevant document under subsection (4)(b), it may give
directions as to the action to be taken in relation to the relevant document.
35
(6)
Directions under subsection (5) may in particular—
(a)
require the relevant document to be treated (generally or for specified
purposes) as not having been adopted or published;
(b)
require specified steps in the process that has resulted in the adoption
of the relevant document to be treated (generally or for specified
40
purposes) as having been taken or as not having been taken;
(c)
require action to be taken by a body or person with a function relating
to the preparation, adoption or publication of the document (whether
or not the body or person to whom the document is remitted);
(d)
require action to be taken by one body or person to depend on what
45
action has been taken by another body or person.

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 1 — Marine licences
34

(7)
The court’s powers under subsections (4) and (5) are exercisable in relation to
the whole or any part of the relevant document.
(8)
Expressions used in this section and in section 59 have the same meaning in
this section as they have in that section.
Interpretation and Crown application
5
61
Interpretation and Crown application of this Part
(1)
In this Part—
“adopted” is to be read—
(a)
in the case of an MPS, in accordance with section 42 and
paragraph 11 of Schedule 5,
10
(b)
in the case of a marine plan, in accordance with section 49 and
paragraph 15 of Schedule 6,
and related expressions are to be construed accordingly;
“marine plan” has the meaning given in section 49;
“marine plan area” is to be read in accordance with section 49;
15
“marine plan authority” is to be read in accordance with section 48;
“marine planning region” is to be read in accordance with section 47;
“policy authority” has the meaning given in section 42;
“retained functions” has the meaning given in section 57.
(2)
Any reference in this Part to an MPS governing marine planning for an area is
20
to be construed in accordance with section 49(6).
(3)
This Part binds the Crown.
Part 4
Marine licensing
Chapter 1
25
Marine licences
62
Requirement for licence
(1)
No person may—
(a)
carry on a licensable marine activity, or
(b)
cause or permit any other person to carry on such an activity,
30

except in accordance with a marine licence granted by the appropriate
licensing authority.
(2)
Subsection (1) is subject to any provision made by or under sections 71 to 74.
63
Licensable marine activities
(1)
For the purposes of this Part, it is a licensable marine activity to do any of the
35
following—