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 5 — Nature conservation
Chapter 1 — Marine conservation zones
83

136
Offence of damaging etc protected features of MCZs
(1)
A person is guilty of an offence under this section if—
(a)
the person without lawful excuse does a prohibited act,
(b)
at the time of doing that act, the person knows, or ought to have known,
that the feature to which the act relates is in, or forms part of, an MCZ,
5
and
(c)
the act has significantly hindered, or may significantly hinder, the
achievement of the conservation objectives stated for the MCZ.
(2)
For the purposes of subsection (1), a person does a prohibited act if the
person—
10
(a)
intentionally kills or injures any animal in an MCZ which is a protected
feature of that MCZ,
(b)
intentionally picks, collects, cuts, uproots or destroys any plant in an
MCZ which is a protected feature of that MCZ,
(c)
intentionally takes anything from an MCZ which is, or forms part of, a
15
protected feature of that MCZ, or
(d)
intentionally destroys or damages any habitat or feature which is a
protected feature of an MCZ.
(3)
A person who is guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding £50,000;
20
(b)
on conviction on indictment, to a fine.
(4)
In determining the amount of any fine to be imposed on a person convicted of
an offence under this section, the court must in particular have regard to any
financial benefit which has accrued or appears likely to accrue to the person in
consequence of the offence.
25
(5)
Proceedings for an offence under this section may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
part of the United Kingdom.
137
Exceptions to offences under section 135 or 136
(1)
A person is not guilty of an offence under section 135 or 136 if the act which is
30
alleged to constitute the offence—
(a)
was done in accordance with section 121(2) by a public authority;
(b)
was expressly authorised by an authorisation granted in accordance
with section 122, or was necessarily incidental to such an act;
(c)
was done in accordance with—
35
(i)
a permit issued under section 125(5) or 130(4), or
(ii)
a permit issued by the appropriate authority;
(d)
was necessary in the interests of national security or the prevention or
detection of crime, or was necessary for securing public health;
(e)
was necessary for the purpose of securing the safety of any vessel, or of
40
preventing damage to any vessel or cargo, from any danger which
could not have been foreseen or anticipated;
(f)
was done for the purpose of saving life.
(2)
A person is not guilty of an offence under section 135 by reason of doing
anything that is an offence under section 136.
45

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
84

(3)
It is a defence for a person who is charged with an offence under section 136 to
show that—
(a)
the act which is alleged to constitute the offence was—
(i)
an act done for the purpose of, and in the course of, sea fishing,
or
5
(ii)
an act done in connection with such an act,

and
(b)
the effect of the act on the prohibited feature in question could not
reasonably have been avoided.
(4)
Nothing in section 136 applies to anything done in relation to an MCZ lying
10
beyond the seaward limits of the territorial sea by a person on a third country
vessel.
(5)
In this section—
“act” includes omission;
“third country vessel” means a vessel which—
15
(a)
is flying the flag of, or is registered in, any State or territory
(other than Gibraltar) which is not a member State, and
(b)
is not registered in a member State.
Fixed monetary penalties
138
Fixed monetary penalties
20
(1)
The appropriate authority for any area (other than the Scottish offshore region)
may by order make provision to confer on any enforcement authority for that
area the power by notice to impose a fixed monetary penalty on a person in
relation to an offence under section 135.
(2)
Provision under this section may only confer such a power in relation to a case
25
where the enforcement authority is satisfied beyond reasonable doubt that the
person has committed the offence.
(3)
For the purposes of this Chapter a “fixed monetary penalty” is a requirement
to pay to the enforcement authority a penalty of a prescribed amount.
(4)
The amount of the fixed monetary penalty that may be imposed in relation to
30
an offence may not exceed level 1 on the standard scale.
(5)
In this section “prescribed” means prescribed in an order made under this
section.
139
Fixed monetary penalties: procedure
(1)
Provision under section 138 must secure the results in subsection (2).
35
(2)
Those results are that—
(a)
where the enforcement authority proposes to impose a fixed monetary
penalty on a person, the authority must serve on that person a notice of
what is proposed (a “notice of intent”) which complies with subsection
(3),
40
(b)
the notice of intent also offers the person the opportunity to discharge
the person’s liability for the fixed monetary penalty by payment of a

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
85

prescribed sum (which must be less than or equal to the amount of the
penalty),
(c)
if the person does not so discharge liability—
(i)
the person may make written representations and objections to
the enforcement authority in relation to the proposed
5
imposition of the fixed monetary penalty, and
(ii)
the enforcement authority must at the end of the period for
making representations and objections decide whether to
impose the fixed monetary penalty,
(d)
where the enforcement authority decides to impose the fixed monetary
10
penalty, the notice imposing it (“the final notice”) complies with
subsection (5), and
(e)
the person on whom a fixed monetary penalty is imposed may appeal
against the decision to impose it.
(3)
To comply with this subsection the notice of intent must include information
15
as to—
(a)
the grounds for the proposal to impose the fixed monetary penalty,
(b)
the effect of payment of the sum referred to in subsection (2)(b),
(c)
the right to make representations and objections,
(d)
the circumstances in which the enforcement authority may not impose
20
the fixed monetary penalty,
(e)
the period within which liability to the fixed monetary penalty may be
discharged, which must not exceed the period of 28 days beginning
with the day on which the notice of intent was received, and
(f)
the period within which representations and objections may be made,
25
which must not exceed the period of 28 days beginning with the day on
which the notice of intent was received.
(4)
Provision pursuant to subsection (2)(c)(ii)—
(a)
must secure that the enforcement authority may not decide to impose a
fixed monetary penalty on a person where the authority is satisfied that
30
the person would not, by reason of any defence, be liable to be
convicted of the offence in relation to which it was imposed, and
(b)
may include provision for other circumstances in which the
enforcement authority may not decide to impose a fixed monetary
penalty.
35
(5)
To comply with this subsection the final notice referred to in subsection (2)(d)
must include information as to—
(a)
the grounds for imposing the penalty,
(b)
how payment may be made,
(c)
the period within which payment must be made,
40
(d)
any early payment discounts or late payment penalties,
(e)
rights of appeal, and
(f)
the consequences of non-payment.
(6)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the enforcement authority include
45
the following—
(a)
that the decision was based on an error of fact;
(b)
that the decision was wrong in law;
(c)
that the decision was unreasonable.

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 1 — Marine conservation zones
86

(7)
In this section “prescribed” means prescribed in an order made under section
138.
140
Further provision about fixed monetary penalties

Schedule 10 (which makes further provision about fixed monetary penalties)
has effect.
5
Miscellaneous and supplemental
141
Application to the Crown
(1)
This Chapter is binding on the Crown and applies in relation to any Crown
land as it applies in relation to any other land.

This is subject to subsection (2).
10
(2)
No contravention by the Crown of any provision of this Chapter 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 authority or any other
authority charged with enforcing that provision, declare unlawful any act or
omission of the Crown which constitutes such a contravention.
15
(3)
Despite subsection (2), the provisions of this Chapter apply to persons in the
public service of the Crown as they apply to other persons.
(4)
For the purposes of this section “Crown land” means land an interest in
which—
(a)
belongs to Her Majesty in right of the Crown or in right of Her private
20
estates,
(b)
belongs to Her Majesty in right of the Duchy of Lancaster,
(c)
belongs to the Duchy of Cornwall, or
(d)
belongs to a government department or is held in trust for Her Majesty
for the purposes of a government department.
25
(5)
In this section references to Her Majesty’s private estates are to be construed in
accordance with section 1 of the Crown Private Estates Act 1862 (c. 37).
142
Consequential and transitional provision
(1)
Schedule 11 (which makes consequential amendments) has effect.
(2)
Schedule 12 (which makes transitional provision) has effect.
30
143
Interpretation of this Chapter
(1)
In this Chapter—
“appropriate authority” has the meaning given by section 113(5);
“the appropriate statutory conservation body” means—
(a)
in respect of an area in England, Natural England,
35
(b)
in respect of an area in Wales, the Countryside Council for
Wales,
(c)
in respect of an area outside the seaward limits of the territorial
sea, the Joint Nature Conservation Committee;

Marine and Coastal Access Bill [HL]
Part 5 — Nature conservation
Chapter 2 — Other conservation sites
87

“enforcement authority” means, in relation to any area, any authority
which has a function (whether or not statutory) of taking any action
with a view to or in connection with the imposition of any sanction,
criminal or otherwise, in a case where an offence under this Chapter is
committed in that area;
5
“emergency byelaw” has the meaning given by section 127;
“England” includes the English inshore region;
“interim byelaw” means a byelaw made under section 128(1);
“interim order” means an order made under section 132(1);
“MCZ” means a marine conservation zone designated by an order under
10
section 113;
“protected feature”, in relation to an MCZ or proposed MCZ, means any
flora, fauna, habitat or feature which is sought to be conserved by the
making of the order designating the zone;
“recreational vessel” means any vessel designed or used for any
15
recreational or sporting purpose (whether or not as part of a
commercial enterprise);
“sea” has the meaning given by section 312(1), except that it does not
include any waters upstream of the fresh-water limit of estuarial
waters;
20
“seashore” means—
(a)
the foreshore, that is to say, land which is covered and
uncovered by the ordinary movement of the tide, and
(b)
any land, whether or not covered intermittently by water,
which is in apparent continuity (determined by reference to the
25
physical characteristics of that land) with the foreshore, as far
landward as any natural or artificial break in that continuity;
“vehicles” includes—
(a)
bicycles and other non-motorised forms of transport, and
(b)
hovercraft;
30
“vessels” includes—
(a)
hovercraft,
(b)
aircraft capable of landing on water, and
(c)
any other craft capable of travelling on, in or under water,
whether or not capable of carrying any person;
35
“Wales” includes the Welsh inshore region.
(2)
In the definition of “sea” in subsection (1) “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 the European
Parliament and of the Council of 23 October 2000 establishing a framework for
40
Community action in the field of water policy).
Chapter 2
Other conservation sites
144
Marine boundaries of SSSIs and national nature reserves
Schedule 13 (which amends the Wildlife and Countryside Act 1981 (c. 69) in
45
relation to sites of special scientific interest and national nature reserves) has
effect.

Marine and Coastal Access Bill [HL]
Part 6 — Management of inshore fisheries
Chapter 1 — Inshore fisheries and conservation authorities
88

Part 6
Management of inshore fisheries
Chapter 1
Inshore fisheries and conservation authorities
Inshore fisheries and conservation districts and authorities
5
145
Establishment of inshore fisheries and conservation districts
(1)
The Secretary of State may by order establish inshore fisheries and
conservation districts.
(2)
An inshore fisheries and conservation district (an “IFC district”) is an area that
consists of—
10
(a)
one or more local authority areas in England that include part of the
seashore, and
(b)
such part of the English inshore region lying seawards from that part of
the seashore as is specified in the order establishing the district.
(3)
Before making an order establishing an IFC district the Secretary of State must
15
consult—
(a)
the council for every local authority area that would, if the order were
made, fall within the IFC district established by the order,
(b)
the Environment Agency,
(c)
Natural England,
20
(d)
the MMO,
(e)
the authority for any existing IFC district that would, if the order were
made, adjoin the IFC district established by the order,
(f)
the Welsh Ministers, in a case where, if the order were made, the IFC
district established by the order would adjoin the Welsh inshore region,
25

and any other person likely to be affected by the making of the order.
146
Inshore fisheries and conservation authorities
(1)
There is to be an inshore fisheries and conservation authority (an “IFC
authority”) for every IFC district established under section 145.
(2)
Any reference in this Chapter to the authority for an IFC district is a reference
30
to the IFC authority for that district.
(3)
An authority for an IFC district is—
(a)
a committee of the council for the local authority area falling within the
district;
(b)
where there is more than one local authority area falling within the
35
district, a joint committee of the councils for those local authority areas.
147
Membership and proceedings of IFC authorities
(1)
An order under section 145 establishing an IFC district must provide for the
IFC authority for the district to consist of—

Marine and Coastal Access Bill [HL]
Part 6 — Management of inshore fisheries
Chapter 1 — Inshore fisheries and conservation authorities
89

(a)
persons who are members of a relevant council,
(b)
persons appointed by the MMO, and
(c)
other persons.
(2)
The persons appointed as members of the authority for the district by virtue of
subsection (1)(b) must comprise—
5
(a)
persons acquainted with the needs and opinions of the fishing
community of the district, and
(b)
persons with knowledge of, or expertise in, marine environmental
matters.
(3)
The Secretary of State may by order amend subsection (2) so as to add, vary or
10
remove descriptions of persons who may be appointed by virtue of subsection
(1)(b) as members of an IFC authority.

An order under this subsection may make such other amendments of this
section as appear to the Secretary of State to be necessary in consequence of the
order.
15
(4)
An order under section 145 establishing an IFC district must specify the
number of members of the authority for the district.
(5)
The order must also specify—
(a)
the number of members falling within paragraph (a), and the number
of members falling within paragraph (b), of subsection (1);
20
(b)
in a case where there is more than one relevant council for the IFC
district established by the order, the number of members to be
appointed from each council (which may, in the case of any particular
council, be none);
(c)
the number of members falling within paragraph (c) of subsection (1)
25
and the person or persons by whom they are to be appointed.
(6)
An order under section 145 establishing an IFC district may also include
provision about—
(a)
how a member of the authority for the district is to be appointed;
(b)
qualification and disqualification for membership of the authority;
30
(c)
the conduct of members of the authority;
(d)
the appointment of a member of the authority as the chair of the
authority;
(e)
the holding and vacation of office as a member, or as chair, of the
authority (including the circumstances in which a person ceases to hold
35
office or may be removed or suspended from office);
(f)
re-appointment as a member, or as chair, of the authority;
(g)
the validity of acts and proceedings of a person appointed as a member
of the authority in the event of disqualification or lack of qualification;
(h)
the validity of proceedings of the authority in the event of a vacancy in
40
membership or of a defect in the appointment of a member;
(i)
procedure to be followed by the authority;
(j)
the delegation by the authority of any of its functions to a sub-
committee, member or employee of the authority;
(k)
the payment by the authority of allowances to a member and the
45
reimbursement by it of a member’s expenses.
(7)
The following provisions (which make provision about proceedings of local
authority committees and joint committees) have effect in relation to the