|
Clause 88: Remediation notice
238. A person who has carried out or is in the process of carrying out a licensable activity, either without a licence or in a manner that breaches the conditions of their licence, can be issued with a notice requiring them to put right any damage caused by their activity, pay for another body to put right that damage, or to undertake steps elsewhere in compensation for the damage caused. Such a notice is called a remediation notice.
239. The enforcement authority can issue a remediation notice in cases where harm (to the set threshold) to the environment or human health has occurred, or is likely to occur, or where the activity has interfered (to the set threshold) with other legitimate uses of the sea, or is likely to do so.
240. The enforcement authority may only issue a remediation notice after they have consulted the person to whom they intend to issue the notice.
241. The remediation notice requires the person to remedy any damage done to the environment, human health or other uses of the sea. The remediation notice could be served in addition to a stop notice (see below). This would be the case, for example, where an enforcement authority puts an immediate halt to a damaging activity and then requires the operator to put right the damage already caused.
242. A remediation notice must state the enforcement authority’s reasons for issuing the notice; any remedial steps or payment to be made as a consequence of the offence or to protect the environment, human health or prevent interference; and the time period within which any steps required should be completed or sum paid.
Clause 89: Further provision as to enforcement notices
243. All compliance and remediation notices must be in writing. They must be served on the person undertaking or in control of the activity in question, and may, if a licence has been granted for that activity and the person is different, also be served on the licensee. Notices can be varied or revoked by issue of a further notice.
244. It is an offence to fail to comply with a notice.
Civil sanctions
245. The fixed and variable monetary penalties and processes described in the following clauses are based on those in the Regulatory and Enforcement Sanctions Act 2008.
Clause 90: Fixed monetary penalties
246. This clause enables the licensing authority (by order) to grant to the appropriate enforcement authority the power to issue a fixed monetary penalty to a person in relation to an offence under this Part.
247. The appropriate enforcement authority is defined in clause 111.
248. The appropriate enforcement authority may only impose a fixed monetary penalty when it is satisfied beyond reasonable doubt that the person has committed the relevant offence.
249. The amount of a fixed monetary penalty will be specified by the order. Different provision may be made for different cases.
Clause 91: Fixed monetary penalties: procedure
250. This clause specifies certain minimum requirements that the licensing authority must ensure that any fixed monetary penalty regime includes. In particular, when imposing the penalty the enforcing authority must be required to issue a notice of intent to the person setting out the information specified in subsection (3) of this clause, and providing the person with an opportunity to discharge their liability by payment of a prescribed sum. Alternatively a person can make representations, in accordance with subsection (2)(c)(i). The authority may decide to impose a fixed monetary penalty (“final notice”) setting out the information specified in subsection (5). A person on whom a final notice is served has a right of appeal. Subsection (6) sets out the minimum grounds for appeal that must be available.
Clause 92: Variable monetary penalties
251. This clause enables the licensing authority (by order) to grant to the appropriate enforcement authority the power to issue a variable monetary penalty to a person in relation to an offence under this Part.
252. The appropriate enforcement authority is defined in clause 111.
253. The appropriate enforcement authority may only impose a variable monetary penalty when satisfied beyond reasonable doubt that the person has committed the offence.
254. The enforcement authority will determine the amount of the variable monetary penalty on a case-by-case basis.
Clause 93: Variable monetary penalties: procedure
255. This clause specifies certain minimum requirements that the licensing authority must ensure that any variable monetary penalty regime includes. In particular, when imposing the penalty the enforcing authority is required to issue a notice of intent to the person setting out the information specified in subsection (3) of this clause, and providing the person with an opportunity to discharge their liability by payment and/or offer an undertaking (for example, remediation works or another kind of activity). Alternatively a person can make representations against the imposition of the notice. The authority may decide to impose a variable monetary penalty (“final notice”) setting out the information specified in subsection (6) and will take into account any representations it has received. A person on whom a final notice is served has a right of appeal. Subsection (7) sets out the minimum grounds for appeal that must be available.
Clause 94: Further provision about civil sanctions
256. Schedule 7 sets out further provision in relation to the civil sanctions that may be imposed under this Part.
Chapter 4: Delegation
Clauses 95 & 96: Delegation of functions relating to marine licensing; Orders under section 95: supplementary provisions
257. The licensing authority may by order delegate any of its licensing or enforcement functions listed in this clause to such other body as the licensing authority considers appropriate. This includes powers that the licensing authority might confer on an enforcement authority in orders under clauses 90 or 92 that relate to imposing civil sanctions. However, it does not include those functions specified in subsection (6) of clause 95, which must remain the preserve of Ministerial authority. This enables Ministers either to retain their powers as the marine licensing authority or to delegate such operational activities to another competent body. In England it is intended that functions will be delegated to the Marine Management Organisation being established under Part 1 of the Bill.
258. The body named in an order must agree to accept this responsibility. The licensing authority may not exercise any function it has delegated unless the order explicitly permits it to do so. There is no minimum or maximum period for which the delegation applies. Different functions can be delegated to different bodies, or the same function can be delegated to different bodies in different cases.
259. Clause 96 enables further provision to be made in an order concerning the exercise of any delegated functions. Subsection (4) provides a list of the aspects of the licensing process that the licensing authority may want to specifically regulate in the order.
Clause 97: Directions to persons as regards performance of delegated functions
260. This clause applies where a marine licensing authority has delegated some of its licensing or enforcement functions under clause 95. It enables the licensing authority to give further directions to a person to whom it has delegated functions, setting out how those functions should be performed. Subsection (3) requires the person to comply with any such directions, which must be published by the marine licensing authority in accordance with subsection (4).
Chapter 5: Supplementary
Register
Clause 98: Register
261. Each licensing authority must maintain a register of information relating to applications and licences that it is responsible for. They must make it available to the public. Each licensing authority must also set out in regulations further provision regarding the use and maintenance of its register.
262. Information can be withheld from the register if disclosure would, in the opinion of the Secretary of State, threaten national security or be unduly prejudicial to someone’s commercial interest. In the latter case, review of the excluded information must take place after four years. There is a presumption that after this period the excluded information will be made public unless both the person to whom the information relates and the licensing authority agree that it should remain confidential, in which case it will be reviewed in a further four years. The existence of commercially sensitive information should be recorded in the register.
Stop notices and emergency safety notices
Clause 99: Notice to stop activity causing serious harm etc
263. The enforcement authority can issue a notice to a person prohibiting them from carrying on a licensable marine activity if that activity is causing or will cause serious harm to the environment, human health or is causing or will cause serious interference with legitimate uses of the sea. Such a notice is called a stop notice.
264. The enforcement authority can issue a stop notice regardless of whether the person has a marine licence or not and (if they have a licence) regardless of whether they are operating in accordance with the licence conditions.
265. A stop notice must state the enforcement authority’s reasons for issuing the notice; the date and time that the activity must cease being carried out and any steps required by the enforcement authority to be carried out to ensure safe cessation.
266. Requirements may include taking any remedial steps or for a payment to be made as a consequence of the offence or to protect the environment, human health or prevent interference; and the time period within which any steps required should be completed or sum paid.
267. An initial stop notice can be in effect for up to seven days. The stop notice may be extended but only up to a combined total period of 35 days. This limit does not apply where the activity is carried out without a marine licence. In such cases stop notices can be remain in effect until a marine licence is granted for the activity in question.
Clause 100: Further provision as to stop notices
268. Stop notices must be in writing. They must be served on the person undertaking or in control of the activity in question, and may, if a licence has been granted for that activity and the person is different, also be served on the licensee. A notice can be revoked or varied.
269. It is an offence to fail to comply with a stop notice.
Clauses 101 & 102: Imposition of safety requirements where stop notice is in force; and Further provision as to emergency safety notices
270. These clauses provide a way to enforce the navigational safety provisions being repealed in S36A of the Coast Protection Act.
271. An enforcement authority is able to issue a notice to a person if it appears that serious interference with legitimate uses of the sea is occurring, or is likely to occur, from their activity. The notice can require the provision of lights, signals, other aids to navigation or guard ships to be placed around the activity until the serious interference, or threat of interference, is removed.
Other powers
Clause 103: Power to take remedial action
272. In circumstances where a licensable activity has been undertaken either without a licence or in a manner that breaches conditions of a licence, the licensing authority, by virtue of this clause, has the power to undertake any works that will protect the environment, human health or prevent interference with legitimate user of the sea.
273. This power is not limited in use to those circumstances where the authority has issued a remediation notice.
Clause 104: Power to test, and to charge for testing, certain substances
274. At any person’s request, the licensing authority may perform tests on substances for their effect on the marine environment, and to charge for that testing. Substances covered by the testing regime include those used to treat oil or chemicals, algae or other living or dead organisms that may foul a surface, whether on, in or under the sea or seabed, or on a vessel, vehicle, aircraft or marine structure.
Appeals against notices under this Part
Clause 105: Appeals against notices
275. Each appropriate licensing authority is under an obligation to establish a mechanism under which people can appeal its decision to issue a notice. This includes compliance, remediation, stop, and emergency safety notices.
Offences: supplementary provision
Clause 106: General defence of due diligence
276. This clause provides a defence for a person charged with an offence under this Part if that person can demonstrate they took all reasonable precautions and exercised due diligence to avoid committing that offence.
277. Subsections (2) to (6) outline some particular circumstances in which the defence is available and sets out procedures which apply to the proving of this defence.
Clause 107: Offences: jurisdiction
278. Enforcement against any offence committed under this Part can be treated as having taken place anywhere in the United Kingdom, regardless of where the offence actually took place. This ensures that offenders can still be tried when there is uncertainty about in which waters the offence took place.
Application to the Crown
Clause 108: Application to the Crown
279. This Part of the draft Bill applies to the Crown. While the Crown is not criminally liable for contravening any provision in this Part, certain higher courts may, on receipt of an application, declare any of its acts or failure to act unlawful.
280. The Secretary of State has the power to certify, in the interests of national security, that any powers of entry granted in this Part of the Bill should not be exercised on any Crown land specified in that certificate.
Consequential and transitional provision
Clause 109: Amendments and transitional provision
281. This clause gives effect to Schedules 8 and 9.
Interpretation
Clauses 110: The appropriate licensing authority
282. This clause sets out who is the licensing authority in each part of the UK marine licensing area. This varies depending on both the area and the nature of the activity.
283. Subsections (2) and (3) relate to the offshore region adjacent to Scotland. This area is defined in clause 312. In this region the Scottish Ministers are the licensing authority unless the activity to be licensed falls within subsection (3). In respect of those activities the Secretary of State is the licensing authority. Activities licensable by the Secretary of State are those that relate to oil and gas, Part 6 of the Merchant Shipping Act and defence, where oil and gas and defence are described by that subsection. An example of the type of activities that would be licensable in this region by the Secretary of State is those relating to the abandonment of offshore oil platforms.
284. Subsections (4) and (5) relate to Wales and the Welsh inshore region. The Welsh inshore region is defined in clause 312. In this area the Welsh Ministers are the licensing authority unless the activity to be licensed falls within subsection (5). In respect of those activities the Secretary of State is the licensing authority. Activities licensable by the Secretary of State are those that relate to the exploration for, or production of, petroleum, and defence activities, where “petroleum” is defined by subsection (9) and “defence activities” by subsection (10). As with the Scottish offshore region, an example of the type of activities that would be licensable in this area by the Secretary of State are those relating to the abandonment of offshore oil platforms.
285. Subsections (6) and (7) relate to Northern Ireland and the Northern Ireland inshore region. The Northern Ireland inshore region is defined in clause 312. In this area the Department of the Environment Northern Ireland is the licensing authority unless the activity relates to defence of the realm, as described in subsection (7) and for which the Secretary of State is the licensing authority.
286. In all other areas falling within the UK marine licensing area (as defined in clause 112) the licensing authority is the Secretary of State.
Clause 111 and 112: The appropriate enforcement authority; and Interpretation of this Part
287. These clauses provide definitions for the key terms used in this Part.
PART 5: NATURE CONSERVATION
Chapter 1: Marine Conservation Zones
Designation of zones
Clause 113: Marine conservation zones
288. This clause provides a power for the appropriate authority (Welsh Ministers in Wales, Scottish Ministers in Scotland and the Secretary of State elsewhere - hereafter referred to as “Ministers”) to designate areas as Marine Conservation Zones (MCZs) by means of local orders.
289. Subsections (2) and (3) identify those areas within which an MCZ may be designated. These include English inshore waters and the offshore waters of England, Wales, and Northern Ireland (where the Secretary of State is the appropriate authority), the Welsh inshore region (where Welsh Ministers are the appropriate authority), and the Scottish offshore region (where Scottish Ministers are the appropriate authority). Marine nature conservation in the inshore waters of Scotland and Northern Ireland will be a matter for Scottish and Northern Ireland Ministers to determine through their own legislation.
290. Subsection (6) states that Scottish Ministers may not designate an MCZ without agreement from the Secretary of State.
291. Subsection (7) provides that an MCZ designated by Scottish Ministers under this section is to be known as a marine protected area and that references in this Act to an MCZ designated by Scottish Ministers should be read as a reference to a Marine Protected Area.
Clause 114: Grounds for designation of MCZs
292. This clause sets out the circumstances in which Ministers may designate an MCZ. This must be for the purpose of conserving species of marine flora and fauna particularly if they are rare or threatened or for conserving or protecting marine habitats or features of geological or geomorphological interest, whether or not they are considered rare or threatened (subsections (1)-(5)).
293. Subsection (7) allows Ministers to take account of the economic or social consequences of designation. This ensures MCZs can be designated in such a way as to conserve biodiversity and ecosystems whilst minimising any economic and social impacts. Where an area contains features that are rare, threatened or declining, or forms a biodiversity hotspot, greater weight is likely to be attached to ecological considerations. Where there is a choice of alternative areas which are equally suitable on ecological grounds, socio-economic factors could be more significant in deciding which areas may be designated as an MCZ.
Clause 115: Further provision as to orders designating MCZs
294. This clause sets out the requirements for MCZ designation, including the requirement to specify conservation objectives, boundaries and protected features. The level of protection for an individual MCZ will depend on the site’s conservation objectives, which can take account of relevant conservation, social and economic considerations. The conservation objectives will need to be clear to ensure that all public authorities understand the implications of the duties placed on them by clauses 121 and 122.
295. Subsection (3) provides for the inclusion in an MCZ of any island regardless of whether the land lies above the mean high water spring tide. This will be particularly relevant where there are numerous small islands, transient sand banks or rocky outcrops (which would be impracticable to individually exclude). Islands which should be excluded from an MCZ can be identified in the designation order.
296. Subsections (4) and (5) allow Ministers to extend the boundary of an MCZ to include an additional adjacent area of seashore above mean high water spring tide if certain conditions apply. These conditions include the requirement that the feature(s) which comprise the grounds for designating the MCZ are also present in the extended area. This may be appropriate where a threatened species is also present in the area of land above mean high water spring tide and protection depends on extending the boundary of the MCZ.
297. Subsection (6) requires that an MCZ includes land whether or not it is covered by water (which will include the sea bed and foreshore) and in the case of an area within the seaward limits of the territorial sea or the Exclusive Economic Zone, may include the water covering it (which includes the water column at sea, estuarial/transitional waters, pools and lagoons).
Clause 116: Consultation before designation
298. This clause requires Ministers to carry out public consultation before designating an MCZ. Subsections (2) and (3) require notice of a proposed designation order to be published. This enables all parties likely to be affected by a proposed order to have the opportunity to have their interests taken into account. The clause does not prescribe a list of bodies or persons who might be affected by a proposed order. Such a list could easily become out of date, or fail to mention certain bodies or persons. It is the responsibility of Ministers to ensure that those bodies or persons who are likely to be affected by the making of an order are consulted.
299. Subsections (4), (5), (6), (7), (8) and (9) provide for consultation between the Ministers so that each has the opportunity to comment if their prospective waters might be affected by the making of a designation order.
300. Subsections (10) and (11) provide an exemption from the general consultation requirement if there is an urgent need to designate an MCZ (although Ministers may still be required to consult each other). In such cases, an urgent order can only remain in force for up to two years before which consultation will be required to confirm the designation.
Clause 117: Hearings by appropriate authority
301. This clause makes provision for Ministers to hold hearings before deciding whether to make an order under clause 113 to designate an MCZ.
302. Subsection (2) gives Ministers discretion to give any person the opportunity of being heard by an inspector or other appointed person, either orally or in writing. Subsection (4) requires these representations to be reported back to the authority.
Clause 118: Amendment, revocation and review of orders designating MCZs
303. This clause allows an order designating an MCZ to be amended or revoked by a further order. Subsection (2) requires the appropriate authority to review any order if asked to by another appropriate authority or the Department of the Environment in Northern Ireland.
| 
