Marine And Coastal Access Bill [HL] - continued          House of Lords

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Paragraph 10: Guidance as to enforcement of offences

848.     This paragraph requires that, where the licensing authority makes an order enabling the imposition of fixed or variable monetary penalties, the enforcement authority should prepare and publish guidance regarding the manner in which the offence to which the power relates is enforced (“Enforcement Policy”).

849.     An enforcement authority will be able to revise its guidance periodically. The enforcement authority will be required to consult with all persons it considers appropriate before publishing or revising its guidance.

Paragraph 11: Publication of enforcement action

850.     Any order made under clauses 90 and 92 establishing a civil sanction regime must make provision for the publication of certain information relating to its enforcement actions. Those particulars are listed in sub-paragraphs (2) to (4).

Paragraph 12: Payment of penalties into Consolidated Fund etc

851.     Any monies received by the enforcement authority in pursuant of its enforcement functions under clauses 90 and 92 must be paid into the relevant consolidated fund as determined by sub-paragraph (2).

Paragraph 13: Disclosure of information

852.      This paragraph permits those listed in sub-paragraph (2) to disclose information to an enforcement authority that has had the new sanctioning powers conferred upon it. Information may only be disclosed where the enforcement authority has an enforcement function in relation to a criminal offence and for the purposes of the enforcement authority exercising one of the new powers relating to the issue of fixed and variable monetary penalties.

SCHEDULE 8: LICENSING: MINOR AND CONSEQUENTIAL AMENDMENTS

Paragraph 4: Application of Part 3 in relation to submarine pipelines

853.     This paragraph introduces two new order making powers into the Petroleum Act 1998. The first power in sub-paragraph (2) provides for the Secretary of State to be able to disapply Part 3 of the Petroleum Act 1998 to any pipelines specified in that order. This can apply to individual pipelines or more generic descriptions of pipelines. On commencement of any such order, pipelines no longer regulated under Part 3 of the Petroleum Act 1998 will become fully licensable under the Marine Bill courtesy of clause 63.

854.     The second power, in sub-paragraph (3), provides for the Secretary of State to apply Part 3 of the Petroleum Act 1998 to pipelines not currently subject to regulation under that Act. It can only be used to include pipelines used in the connection with exploration for, exploitation of, petroleum, or the importation of petroleum into the UK.

Paragraph 5: Exception of certain pipelines from being “submarine pipelines” for the purposes of Part 4

855.     This paragraph amends the definition of “submarine pipelines” in Part 4 of the Petroleum Act 1998. It prevents any pipeline specified in an order made under sub-paragraph (2) of paragraph 4 being captured by Part 4 of that Act “Abandonment of offshore installations”.

SCHEDULE 9: LICENSING: TRANSITIONAL PROVISION RELATING TO PART 4

Parts 2 and 3: Coast Protection Act 1949; Food and Environment Protection Act 1985

856.     These two Parts provide that all consents under the Coast Protection Act 1949 and FEPA licences issued before the commencement of the marine licensing provisions are to be considered as marine licences as if they were granted under the Marine Bill. Additionally, applications for CPA consent and FEPA licences currently under consideration by the licensing authority at the time of commencement of the marine licensing provisions are to be considered by the licensing authority as applications for a marine licence. No additional fees will be required.

Paragraph [8]: Channel Islands and British Overseas Territories

857.     This paragraph provides that FEPA will remain in force in all those Overseas Territories and Channel Islands until such time as:

  • They are repealed by an Order in Council under sub-paragraph (4) of this paragraph

  • The Marine Bill provisions are commenced in that territory by an Order in Council under clause 313 of the Bill

Paragraph 9: Dredging

858.     Dredging that involves moving sediment around the sea (as opposed to lifting it out of the sea and taking it to a deposition site) was not licensable under FEPA or the Coast Protection Act 1949. Plough and hydrodynamic dredging are two examples of this. Under the Bill these types of dredging need a marine licence. This paragraph delays the requirement for a marine licence for such dredging activities by one year from the date of commencement of the marine licensing functions of the Bill. Any order making further transitional arrangements made under clause 310 can specify additional types of dredging activity that are subject to the one-year grace period.

Paragraph 10: Water Resources Act 1991

859.     This paragraph provides that clause 79 applies to any application for consent under section 109 of the Water Resources Act 1991 made, but not determined, by the time of commencement of the marine licensing provisions of the Bill.

Paragraphs 11 and 12: Electronic Communications Code: England and Wales; Electronic Communications Code: Scotland

860.     The Marine Bill repeals the requirement for operators to seek approval under the Electronic Communications Code for tidal works (see Part 2 of the Repeals Schedule). These paragraphs provide that approvals granted under paragraph 11 of the Electronic Communications Code before that repeal are to be considered as marine licences, in England and Wales, and FEPA licences, in Scotland. Additionally, applications for approval currently under consideration by the licensing authority at the time of the repeal are to be considered by the licensing authority as applications for a marine licence, in England and Wales, and FEPA licences, in Scotland.

SCHEDULE 10: FURTHER PROVISION ABOUT FIXED MONETARY PENALTIES UNDER SECTION 138

861.     This Schedule sets out the further provisions for fixed monetary penalties. Paragraph (1) provides that an order allowing the imposition of fixed monetary penalties must provide that, where a fixed monetary penalty is imposed on a person, that person must not also be liable to criminal prosecution in respect of the relevant offence.

862.     Paragraph (2) states that such an order may provide for discounts for early payment or interest for late payment of the original penalty. The total amount of any late payment penalty must not exceed the total amount of the penalty imposed.

863.     This paragraph also provides for the enforcement of unpaid penalties (and any interest or late payment charges) through the civil courts.

864.     Paragraph 3 makes provision for appeals.

865.     Paragraph 4 requires the “appropriate authority” (the Secretary of State or Welsh Ministers) proposing to make an order allowing the use of fixed monetary penalties to consult with the enforcement authority and such other persons the authority considers appropriate. The relevant authority will also be required to consult with relevant organisations it considers represent the interests of persons substantially affected by the proposals.

866.     If there are, as a result of this, substantial changes to any part of the proposals, the authority will be required to undertake further consultation on the revised proposals as it considers appropriate.

867.     Paragraph 5 provides that an order enabling the imposition of fixed monetary penalties must also require that the enforcement authority publishes guidance in relation to the use of these powers (Penalty Guidance). The enforcement authority must consult specific persons before publishing or revising the Penalty Guidance and must also be revised by the enforcement authority where appropriate. The order must also state that the enforcement authority should have regard to the Penalty Guidance when exercising its functions.

868.     The Penalty Guidance must contain information about the circumstances in which a sanction is likely to be imposed, the amount of the penalty and the person’s right of appeal.

869.     Paragraph 6 requires that where the Secretary of State or Welsh Ministers make an order enabling the imposition of fixed monetary penalties, the enforcement authority must prepare and publish guidance regarding the manner in which the power is enforced (Enforcement Policy).

870.     Paragraph 7 provides that any order must require an enforcement authority to publish information concerning their use of those powers in particular cases where a fixed monetary penalty is imposed (but not overturned on appeal) and discharged by payment of a prescribed sum.

871.     Paragraph 8 provides that all payments made in relation to civil sanctions are to be paid into either the Consolidated Fund or the Welsh Consolidated Fund as appropriate.

872.     Paragraph 9 permits those listed in subparagraph (2) to disclose information to an enforcement authority that has had the new enforcement powers conferred on it. Information may only be disclosed where the person listed has an enforcement function in relation to offences and for the purposes of the enforcement authority exercising one of the new powers.

SCHEDULE 11: CONSEQUENTIAL AMENDMENTS RELATING TO MCZS

873.     This Schedule amends a number of Acts to take account of the provisions proposed in this draft Bill.

874.     Paragraph 1 amends the Conservation of Seals Act 1970 (section 10) so that the power to grant licences is in relation to MCZs rather than marine nature reserves. This reflects the change in title for the marine protected areas from commencement of this Bill.

875.     Paragraph 2 amends the Wildlife and Countryside Act 1981 once again to omit sections 36 and 37 and update section 34A as a result of the creation of MCZs.

876.     Paragraph 4 amends the Conservation (Natural Habitats &c) Regulations 1994 to apply conservation provisions (and related urgent and interim byelaws and orders) to European Marine sites, in place of the outdated byelaw provisions under the Wildlife and Countryside Act 1981. All sites within the network will now have a single set of byelaw provisions.

SCHEDULE 12: TRANSITIONAL PROVISION RELATING TO MCZS

877.     This schedule determines the transitional provisions and in particular states the commencement date for the provisions set out in Part 5.

878.     Paragraph 2 determines that any Marine Nature Reserve is to be treated as a marine conservation zone on or after the commencement date. Lundy and Skomer will therefore become MCZs following the commencement of the Act. While conservation objectives for these MCZs remain the same as they were for the former MNRs, no further consultation will be required. If, however, changes are proposed to the conservation objectives for the former MNRs, consultation will be required to agree the conservation objectives for the site.

SCHEDULE 13: MARINE BOUNDARIES OF SSSIS AND NATIONAL NATURE RESERVES

Part 1 : Introductory

879.     This schedule amends the Wildlife and Countryside Act 1981 (c. 69).

Part 2: Sites of special scientific interest

880.     Paragraph 2 amends section 28 in order to define the circumstances in which Sites of Special Scientific Interest (SSSIs) may extend below mean low water mark.

881.     Statutory nature conservation bodies (Natural England, and the Countryside Council for Wales) will be able to notify any land as a SSSI where it lies above mean low water mark, where it is covered by estuarial waters, or where it adjoins an existing SSSI and has relevant interrelations with that site.

882.     Paragraph 5 amends section 28B of the Wildlife and Countryside Act 1981. This clause will provide for land lying above the mean low water mark, land covered by estuarial waters or where it adjoins an existing SSSI and has relevant interrelations with that site to be notified under that section.

883.     Paragraph 6 amends section 28C of the Wildlife and Countryside Act 1981. This clause will provide for land lying above the mean low water mark, land covered by estuarial waters or land where it adjoins an existing SSSI and has relevant interrelations with that site to be notified under that section.

884.     Paragraph 7 inserts a new section 28CA to the Wildlife and Countryside Act 1981 to enable Ministers to provide guidance to Natural England or the Countryside Council for Wales regarding subtidal SSSIs.

885.     Paragraph 8 inserts a new clause 28CB to the Wildlife and Countryside Act 1981, giving Ministers the power to make directions in connection with the notification of SSSIs in the sub-tidal area (i.e. where the land lies below mean low water mark and outside estuarial waters).

886.     Paragraph 9 amends section 28D of the Wildlife and Countryside Act 1981 which allows Natural England to denotify areas of land as a SSSI. The amendment made by subsection (2) will allow the conservation bodies to denotify land where it is of the opinion that the land should no longer be notified because it has instead been designated as (or part of) an MCZ.

Part 3: National nature reserves

887.     Paragraph 10 amends section 35 of the Wildlife and Countryside Act 1981 in order to specify the circumstances in which National Nature Reserves (NNRs) may extend beyond mean low water mark or estuarial waters. It explains the existing power of declaration with respect to land lying below mean low water mark.

888.     Paragraph 11 inserts new section 35A into the Wildlife and Countryside Act 1981 to give Ministers the power to direct the conservation bodies on whether or not any of the area beyond the mean low water mark or estuarial waters should be included within the NNR if declared. Ministers can also leave the decision to the discretion of the conservation body.

SCHEDULE 14: INSHORE FISHERIES AND CONSERVATION AUTHORITIES: AMENDMENTS

889.     Schedule 14 contains minor and consequential amendments to various Acts.

SCHEDULE 15: SEA FISH (CONSERVATION) ACT 1967: MINOR AND CONSEQUENTIAL AMENDMENTS

890.     Schedule 15 contains minor and consequential amendments to sections 1, 3, 5 and 11 of the Sea Fish (Conservation) Act 1967 and Schedule 4 to the Fisheries Act 1981 (c.29).

SCHEDULE 16: MIGRATORY AND FRESHWATER FISH: CONSEQUENTIAL AMENDMENTS

891.     Paragraph 2 omits section 3 of the Salmon and Freshwater Fisheries Act 1975, which regulates the use of nets in certain waters. Such use will be regulated by conditions issued as part of a licence or authorisation.

892.     Section 5 of the Salmon and Freshwater Fisheries Act 1975 makes it an offence to use any explosive substance, any poison or other noxious substance, or any electrical device with the intent to take or destroy fish. The Environment Agency may permit their use for scientific or fisheries management purposes. Paragraph 3(3) clarifies that the Agency may charge for such permission. Paragraph 3(4) excludes activities that have been authorised under section 27A from the offence.

893.     Paragraphs 4 to 6 omit sections 6 to 8 and 16 and 17 of the Salmon and Freshwater Fisheries Act 1975. These sections place restrictions on the operation of fixed nets and traps. The Environment Agency will include relevant operating conditions within the conditions of licences and authorisations.

894.     Paragraph 7 removes the cross-reference to section 17 of the Salmon and Freshwater Fisheries Act 1975, which has been repealed.

895.     Paragraph 8 omits sections 19 to 21 of the Salmon and Freshwater Fisheries Act 1975. Section 19 contains offences in relation to close seasons and close times. Section 20 sets out requirements in relation to operation of fixed engines and obstructions during close seasons and close times, and section 21 sets out similar requirements in relation to eel baskets. Close seasons and close times will be regulated through licence conditions, authorisations and byelaws. Penalties for breaching byelaws are in section 211 of the Water Resources Act 1991.

896.     Paragraph 9 amends references to “instruments” in section 25 of the Salmon and Freshwater Fisheries to “means of fishing” to bring it in line with other amendments to that section. Section 25 extends the licensing system to means of fishing which are not “instruments”.

897.     Paragraph 11 amends section 27 of the Salmon and Freshwater Fisheries Act 1975 (unlicensed fishing) in consequence of new provisions on fishing authorisations (see clause 209).

898.     Paragraph 12 amends section 33 of the Salmon and Freshwater Fisheries Act 1975 which enables enforcement officers to enter lands situated on or near to any waters where they suspect an offence under that Act is being committed or likely to be committed. Officers first need to apply to a justice of the peace. This power has been extended so that officers have the power when the offence has been committed in relation to any kind of fish.

899.     Section 34 of the Salmon and Freshwater Fisheries Act 1975 enables enforcement officers to seize without warrant any person who has illegally taken or killed salmon, trout, freshwater fish and eels, or is found on or near any waters with the intent so to do during night-time. Paragraph 13 replaces references to particular species with any fish where the taking or killing constitutes an offence under that Act.

900.     Paragraph 15 omits Schedule 1 to the Salmon and Freshwater Fisheries Act 1975, which makes provision in relation to close times. These will be set in byelaws (see clause 214).

901.     Paragraph 16 amends Schedule 2 to the Salmon and Freshwater Fisheries Act 1975.Under Schedule 2, the Environment Agency may, in special cases, exempt a person from paying a licence duty fixed under that Schedule. Paragraph 16(2) removes the requirement for special cases and allows the exemption in cases where the Agency considers it appropriate.

902.      Paragraph 16(3) allows different licence duties to be charged for the different descriptions of licences the Environment Agency can introduce under clause 207(2)

903.     Amendments to section 25 of the Salmon and Freshwater Fisheries extend the licensing system to means of fishing which are not “instruments”. Paragraph 16(4), 16(7) 16(8), 16(10), 16(11)) and 16(12) amends other references to “instruments” in Schedule 2 accordingly.

904.     Paragraph 16(9) ensures that names can be removed from a licence as well as being entered.

905.     Paragraph 17 amends Schedule 4 to the Salmon and Freshwater Fisheries Act 1975. This Schedule sets out the penalties for offences under that Act. Offences under sections 19 and 21 are repealed in consequence of the repeal of those sections. Following sections 45 and 47 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, the existing statutory maximum penalties on summary conviction for offences triable either way will attract a fine of £10,000 in Scotland. The statutory maximum remains £5,000 in England and Wales.

906.     Those who operate fish farms are exempt from offences listed in Part 1 of Schedule 4 to the Fisheries Act 1981: for example, offences of killing unclean or immature fish, or killing fish during close seasons. Paragraph 18 updates this list to ensure it makes correct reference to the (amended) offences under the Water Resources Act 1991.

907.     Paragraph 19 omits section 32(6)(a) of the Salmon Act, which is redundant following amendments to section 31(1)(b) of that Act made by clause 210.

908.     Amendments to Schedule 25 to the Water Resources Act 1991 extend the Environment Agency’s byelaw making powers to salmon, trout, lampreys, smelt, shad, eels, freshwater fish and other specified fish (by order under new section 40A of the Salmon and Freshwater Fisheries Act 1975). Paragraphs 23 and 24 amend other references to fish species in Schedule 25 and section 212 accordingly.

909.      Paragraph 25 omits paragraph 7 of Schedule 25 to the 1991 Act. Paragraph 7(1) requires that when making byelaws within the district of a Sea Fisheries Committee the Environment Agency must seek its consent. Sea Fisheries Committees are to be replaced with Inshore Fisheries and Conservation Authorities; the relationship between the two jurisdictions will be managed administratively rather than through statutory limitations.

910.     Paragraph 7(2) prohibits the Environment Agency from making byelaws which would prejudice any powers of a sewerage undertaker to discharge sewage which is permitted under any other Act.

911.     Paragraph 26 amends the references to fish made in section 13 of the Environment Act 1995, which requires the Environment Agency to create regional and local fisheries advisory committees.

SCHEDULE 17: WARRANTS ISSUED UNDER SECTION 239

912.     This Schedule sets out the procedure for applying for a warrant for an enforcement officer to enter a dwelling, rules about executing the warrant and other safeguards. It is based on the provisions in the Police and Criminal Evidence Act 1984.

SCHEDULE 18: FORFEITURE OF PROPERTY UNDER SECTION 265 OR 266

913.     Schedule 18 makes detailed provision in respect of the forfeiture of gear or fish which fail to meet size requirements under clauses 265 and 266. The schedule sets that the notice must be served on the person who appears to the relevant authority to be the owner (or any of the owners) at the time of the seizure (and if the property was seized from a vessel then also the master, owner or charterer at that time) and states that the notice must set out the reason for the intended forfeiture action, together with the details of how a notice of claim may be made. Provision is made covering delivery of the notice of intended forfeiture.

914.     A person disputing that the property is liable to forfeiture may submit a notice of claim. Provision is made as to the time limits for submitting such a notice and the details that it must include. If no notice of claim is made then the property is automatically forfeit. If a valid notice is submitted then the property must either be returned or the relevant authority must bring forfeiture proceedings in a court. In forfeiture proceedings the court may order forfeiture or that the property is returned if it is not satisfied that the property is forfeitable. If the property is not collected by the appropriate owner after the three months period for collection has lapsed, then the relevant authority may dispose the property as it sees fit provided that at the time of disposal it cannot be returned immediately to the person to who it is required to be returned.

915.     The schedule also gives the relevant authority the power to destroy any fish which is liable to be treated as forfeit or condemned even if they have not actually been forfeited or condemned. Where the court is not satisfied that the destroyed fish were forfeitable, it has the power to order the relevant authority to pay the claimant the market value of the fish at the time they were seized, determined by a Court appointed referee. Accepting this payment prevents a claimant maintaining an action in respect of the seizure, detention or destruction of the fish. Further provision is made concerning the detail of the forfeiture proceedings (including matters as to proof), the effect of forfeiture, how property is to be disposed of, who may be a referee and provisions on partnerships.

SCHEDULE 19: ESTABLISHMENT AND MAINTENANCE OF ENGLISH COASTAL ROUTE ETC

Extension of Chapter 3 of Part 1 of the CROW Act

916.     Paragraph 1 provides for the powers of access authorities in relation to means of access to access land set out in Chapter 3 of Part 1 of the CROW Act to be exercisable by Natural England for the purposes of the coastal access duty. Paragraph 1(1) makes the Chapter 3 powers apply additionally to land over which the coastal route passes which falls under any of the enactments set out in section 15 of the CROW Act.

 
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Prepared: 5 December 2008