Section 314: Works detrimental to navigation
809.This section inserts a new navigational consenting regime into the Energy Act 2008 and provides a variety of powers for the enforcement of that regime.
810.Consent under these provisions is only needed if all the following are satisfied:
the operation being undertaken falls within a description listed in subsection (4) of the inserted section 79A;
the operation is being carried out subject to any of the legislative permissions mentioned in subsection (5) of the inserted section 79A;
the operation causes, or is likely to result in, obstruction or danger to navigation, either while the operation is being carried out or after its completion (section 79A(3)(a)). This includes any intended use to which any works in question are likely to be put (section 79A(7)).
811.Consent will not be needed under these provisions if the operation in question requires a marine licence under Part 4 of this Act.
812.The Secretary of State may publish notice of any applications received (section 79B(2)) and may direct a local inquiry to be held (section 79B(4)) into that application before making any determination under section 79C.
813.The Secretary of State may give consent subject to any conditions as he or she thinks fit (section 79C). The conditions may remain in force for a set period of time or indefinitely (section 79D(2)) and may bind not only the person to whom consent is given, but also any other person who owns, occupies or enjoys the use of the works forming the subject of the consent (section 79D(3)). It is an offence to fail to comply with a consent or any condition of a consent and any offender will be subject to the penalties specified in section 79I(2).
814.In the event of a consent holder failing to comply with any provision of a consent, the Secretary of State may direct the consent holder to take appropriate steps to bring them into compliance (section 79E). Failure to comply with any such direction is an offence subject to the penalties specified in section 79K(2).
815.If, after consent has been given, a danger to navigation arises because substantial damage, or other substantial and unforeseen changes in the state of any works, has occurred, the Secretary of State may serve an “emergency safety notice” on the consent holder (section 79F). The requirements that an emergency safety notice may impose relate only to those matters given in section 79F(5). If a consent holder fails to comply with any requirement of an emergency safety notice the Secretary of State may make arrangements to ensure compliance with that notice and recover the costs of doing so from the consent holder or other person bound by a consent (section 79G(3)). Further, it is an offence to comply with an emergency safety notice, and a person committing such an offence is subject to the penalties given in section 79L(2).
816.The Secretary of State may impose an “immediate action notice” on a consent holder, or other person bound by a condition on a consent, if as a result of a failure to comply with a consent condition a danger to navigation has arisen (section 79H). The immediate action notice may impose a requirement on a person to comply with the condition or to take action to remedy their failure to comply with the condition. If a consent holder, or other person on whom a notice is served, fails to comply with any requirement of an immediate action notice the Secretary of State may make arrangements to ensure compliance with that notice and recover the costs of doing so from the consent holder or other person bound (section 79G(1) to (6) applies by virtue of section 79H(5)). Further, it is an offence to comply with an immediate action notice, and a person committing such an offence is subject to the penalties given in section 79L(2).
817.In addition to using any of the other enforcement powers, the Secretary of State may apply to a court for an injunction (or interdict in Scotland) to restrain any breach of a consent (section 79M).
818.The Secretary of State has the power to appoint inspectors to assist in the carrying out of his or her functions under these provisions (section 79N).
819.The Secretary of State may by order extend these provisions, subject to modification, to Scottish inshore waters but only in so far as they relate to activities that Scottish Ministers do not have the power to control or regulate for the purpose of preventing obstruction or danger to navigation (section 79P).
