Marine and Coastal Access Act 2009

Chapter 5 Supplementary

Register

101 Register

(1) Each licensing authority must maintain, as respects activities in relation to which it is the appropriate licensing authority and licences for those activities, a register of licensing information.

(2) The register must contain prescribed particulars of or relating to—

(a) applications for licences;

(b) licences granted;

(c) variations of licences;

(d) revocations of licences;

(e) information supplied in connection with any licence in pursuance of any provision of this Part;

(f) convictions for any offence under this Part;

(g) any other action taken to enforce any provision of this Part;

(h) occasions on which any remedial action has been taken;

(i) such other matters relating to licences or the licensable marine activities as may be prescribed.

(3) The register must be maintained in accordance with regulations made by the appropriate licensing authority.

(4) Each licensing authority must make arrangements—

(a) for its register to be available for inspection at all reasonable times by members of the public free of charge;

(b) for copies of entries in its register to be supplied, on request, to members of the public on payment of a reasonable charge.

(5) Information must not appear in the register if—

(a) the Secretary of State determines that its disclosure in the register would be contrary to the interests of national security, or

(b) the appropriate licensing authority determines that its disclosure in the register would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest.

(6) The appropriate licensing authority must review a determination to exclude information under subsection (5)(b) every four years.

(7) On a review under subsection (6) the authority must include the information in the register unless, on the application of any person to whom the information relates, the authority determines that it should continue to be excluded.

(8) Where information of any description is excluded from a register by virtue of subsection (5)(b), a statement must be entered in the register indicating the existence of information of that description.

(9) In this section “prescribed” means prescribed in regulations made under this section.

Stop notices and emergency safety notices

102 Notice to stop activity causing serious harm etc

(1) If it appears to an enforcement authority that subsections (3) and (4) are satisfied in relation to a person carrying on an activity in its area, it may issue a stop notice to that person.

(2) A stop notice is a notice prohibiting a person from carrying on an activity specified in the notice.

(3) This subsection is satisfied if a person is carrying on, or is likely to carry on, a licensable marine activity (whether or not in accordance with a marine licence).

(4) This subsection is satisfied if the carrying on of the activity to be specified in the notice—

(a) is causing, or is likely to cause, any of the effects in subsection (5), or

(b) is creating, or is likely to create, an imminent risk of any of those effects.

(5) The effects are—

(a) serious harm to the environment;

(b) serious harm to human health;

(c) serious interference with legitimate uses of the sea.

(6) A stop notice (in addition to specifying the activity to which it relates)—

(a) must state the enforcement authority’s grounds for believing that subsections (3) and (4) are satisfied;

(b) must state the date and time from which the prohibition is to take effect (which may be a time on the date of the notice but must allow a period for compliance which is reasonable in all the circumstances of the case);

(c) may require the person to take such steps as the authority considers appropriate to ensure that the cessation of the activity takes place safely.

(7) Except in a case falling within subsection (9), a stop notice—

(a) ceases to have effect at the end of the period of 7 days (or such shorter period as may be specified in the notice) beginning with the date on which the prohibition takes effect, but

(b) may be renewed for a period specified in a further notice.

(8) A stop notice may be renewed more than once under subsection (7)(b), but not so that it has effect for an aggregate period exceeding 35 days.

(9) If a stop notice relating to a licensable marine activity is issued to a person who does not hold a marine licence authorising that activity, the stop notice may remain in force until such time (if any) as such a licence is granted to that person.

103 Further provision as to stop notices

(1) Any stop notice issued by an enforcement authority—

(a) must be served on any person carrying on, or in control of, the activity to which the notice relates, and

(b) if a marine licence has been granted in relation to that activity, may also be served on the licensee.

(2) An enforcement authority may by a further notice—

(a) revoke a stop notice;

(b) vary a stop notice so as to substitute a later date for the date specified in accordance with section 102(6)(b).

(3) A person who fails to comply with a stop notice commits an offence.

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to a fine not exceeding £50,000;

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.

104 Emergency safety notices

(1) This section applies if it appears to an enforcement authority that serious interference with legitimate uses of the sea is occurring, or is likely to occur, in its area as a result of—

(a) any works for the carrying out of which a marine licence is or was needed, or

(b) any substantial and unforeseen change in the state or position of any such works.

(2) The enforcement authority may issue a notice (an “emergency safety notice”) to any person who is in control of the works to which the notice relates.

(3) By issuing an emergency safety notice to a person, the enforcement authority imposes on that person such requirements as are prescribed in the notice with respect to any of the matters specified in subsection (4).

(4) Those matters are—

(a) the provision of lights, signals or other aids to navigation;

(b) the stationing of guard ships.

(5) An emergency safety notice (in addition to specifying the requirements which it imposes)—

(a) must state the enforcement authority’s grounds for believing that serious interference with legitimate uses of the sea is occurring or is likely to occur,

(b) must state the date and time from which the requirements are to take effect (which may be a time on the date of the notice but must allow a period for compliance which is reasonable in all the circumstances of the case), and

(c) may require the person to take such steps as the authority considers appropriate to ensure that compliance with the requirements takes place safely.

105 Further provision as to emergency safety notices

(1) An emergency safety notice issued by an enforcement authority must be served on each of the following—

(a) if a marine licence has been granted authorising the carrying out of the works, the licensee,

(b) if there is in effect a stop notice which relates to the works, any person on whom the stop notice was served.

(2) An enforcement authority may by a further notice—

(a) revoke an emergency safety notice;

(b) vary an emergency safety notice so as to substitute a later date for the date specified in accordance with section 104(5)(b).

(3) A person who fails to comply with an emergency safety notice commits an offence.

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to a fine not exceeding £50,000;

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.

Other powers

106 Power to take remedial action

(1) This section applies if it appears to the appropriate licensing authority for an area that a licensable marine activity has been carried on in its area otherwise than under a licence and in accordance with its conditions.

(2) The authority may carry out any works that appear to it to be necessary or expedient for any one or more of the following purposes—

(a) protecting the environment;

(b) protecting human health;

(c) preventing interference with legitimate uses of the sea;

(d) preventing or minimising, or remedying or mitigating the effects of, any harm or interference falling within subsection (3);

(e) restoring (whether in whole or in part) the condition of any place affected by any such harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred.

(3) The harm or interference mentioned in subsection (2)(d) and (e) is any of the following which has been, is being, or is likely to be, caused by the carrying on of the licensable marine activity—

(a) harm to the environment;

(b) harm to human health;

(c) interference with legitimate uses of the sea.

107 Power to test, and charge for testing, certain substances

(1) A licensing authority may, at the request of any person, conduct tests for the purpose of ascertaining the probable effect on the marine environment of using any of the following substances—

(a) any marine chemical treatment substance;

(b) any marine oil treatment substance;

(c) any marine surface fouling cleaner.

(2) In this section—

• “marine chemical treatment substance” means any substance used or intended to be used for treating chemicals—

  (a)

  on the surface of the sea or of the sea bed;

  (b)

  in the case of a wash-off substance, on any surface of a marine structure;

• “marine oil treatment substance” means any substance used or intended to be used for treating oil on the surface of the sea;

• “marine surface fouling cleaner” means any substance used or intended to be used for removing surface fouling matter—

  (a)

  from the surface of the sea or of the sea bed;

  (b)

  in the case of a wash-off substance, from any surface of a marine structure or vessel at times when the structure or vessel is in the sea or on the sea bed;

• “surface fouling matter” means any fouling, and includes, in particular,—

  (a)

  any algae;

  (b)

  any surface oil or chemical residue;

• “surface oil or chemical residue” means any residual matter on a surface after the removal, or substantial removal, of any oil or chemical (whether by natural processes, or by treatment, or in any other way);

• “wash-off substance”, in relation to a marine structure or vessel, means any substance which, if used on a surface of the marine structure or vessel, will or might (whether in whole or to a significant extent)—

  (a)

  be removed from that surface, and

  (b)

  be deposited in the sea,

  whether by natural processes, or by treatment, or in any other way.

(3) A licensing authority may recover any expenses reasonably incurred in conducting any tests under subsection (1) from any person at whose request those tests were conducted.

Appeals against notices under this Part

108 Appeals against notices

(1) The appropriate licensing authority must by regulations make provision for any person to whom a notice is issued under section 72, 90, 91, 102 or 104 to appeal against that notice.

(2) The regulations required by subsection (1) must come into force on the day on which this Part comes into force.

(3) Regulations under this section may include—

(a) provision as to the procedure to be followed with respect to an appeal;

(b) provision suspending the notice pending determination of the appeal;

(c) provision as to the powers of any person to whom the appeal is made;

(d) provision as to how any sum payable in pursuance of a decision of that person is to be recoverable.

Offences: supplementary provision

109 General defence of due diligence

(1) In any proceedings for an offence under this Part, it is a defence for the person charged (“the defendant”) to prove that the defendant took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(2) The defence provided by subsection (1) is to be taken to be established if the defendant—

(a) acted under an employer’s instructions,

(b) did not know and had no reason to suppose that the acts done constituted a contravention of the provision in question, and

(c) took all such steps as reasonably could be taken to ensure that no offence would be committed.

(3) The defence provided by subsection (1) is to be taken to be established if the defendant—

(a) acted in reliance on information supplied by another person,

(b) did not know and had no reason to suppose that the information was false or misleading, and

(c) took all such steps as reasonably could be taken to ensure that no offence would be committed.

(4) Subsections (2) and (3) do not affect the generality of subsection (1).

(5) If in any case the defence provided by subsection (1) involves the allegation that the commission of the offence was due to—

(a) an act or default of another person (other than the giving of instructions to the defendant by an employer), or

(b) reliance on information supplied by another person,

the defendant is not, without leave of the court, entitled to rely on that defence unless the requirement in subsection (6) is satisfied.

(6) The requirement is that—

(a) at least seven clear days before the hearing, and

(b) if the defendant has previously appeared before a court in connection with the alleged offence, within one month of the first such appearance,

the defendant has served on the prosecutor a notice giving such information identifying or assisting in the identification of that other person as was then in the defendant’s possession.

110 Offences: jurisdiction

Proceedings for an offence under this Part may be taken, and the offence may for all incidental purposes be treated as having been committed, in any part of the United Kingdom.

Application to the Crown

111 Application to the Crown

(1) The provisions of this Part bind the Crown.

This is subject to the following provisions of this section.

(2) No contravention by the Crown of any provision of this Part 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 licensing authority or any other authority charged with enforcing that provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Despite subsection (2), the provisions of this Part apply to persons in the public service of the Crown as they apply to other persons.

(4) The Secretary of State may certify that it appears to the Secretary of State that, as respects—

(a) any Crown land specified in the certificate, and

(b) any powers of entry so specified which are exercisable in relation to that land,

it is necessary or expedient that, in the interests of national security, the powers should not be exercisable in relation to the land.

(5) If the Secretary of State issues a certificate under subsection (4), the powers specified in the certificate are not exercisable in relation to the land so specified.

(6) For the purposes of subsection (4) “Crown land” means land held or used by or on behalf of the Crown.

(7) Nothing in this section is to be taken as in any way affecting Her Majesty in her private capacity or in right of Her Duchy of Lancaster, or the Duke of Cornwall.

Consequential and transitional provision

112 Amendments and transitional provision

(1) Schedule 8 (which makes minor and consequential amendments) has effect.

(2) Schedule 9 (which makes transitional provision) has effect.

Interpretation

113 The appropriate licensing authority

(1) This section has effect for determining who is the appropriate licensing authority for any area (and any licensable marine activity carried on in that area).

(2) In relation to the Scottish offshore region, the appropriate licensing authority is—

(a) the Secretary of State, as respects anything done in the course of carrying on an activity falling within subsection (3);

(b) except as provided by paragraph (a), the Scottish Ministers.

(3) The activities are—

(a) any activity relating to a matter which is a reserved matter by virtue of Section D2 (oil and gas) of Schedule 5 to the Scotland Act 1998 (c. 46) (but see also section 77 above (this Part not to apply to certain oil and gas etc activities));

(b) any activity relating to a matter which is a reserved matter by virtue of paragraph 9 in Part 1 of that Schedule (defence);

(c) any activity falling within the subject matter of Part 6 of the Merchant Shipping Act 1995 (c. 21) (pollution etc).

(4) In relation to Wales and the Welsh inshore region, the appropriate licensing authority is—

(a) the Secretary of State, as respects anything done in the course of carrying on an activity falling within subsection (5);

(b) except as provided by paragraph (a), the Welsh Ministers.

(5) The activities are—

(a) any activity concerning or arising from the exploration for, or production of, petroleum (but see also section 77 (this Part not to apply to certain oil and gas etc activities));

(b) any defence activity other than an excepted activity.

Subsection (9) supplements this subsection.

(6) In relation to Northern Ireland and the Northern Ireland inshore region, the appropriate licensing authority is—

(a) the Secretary of State, as respects anything done in the course of carrying on an activity falling within subsection (7);

(b) except as provided by paragraph (a), the Department of the Environment in Northern Ireland.

(7) The activities are any activities which relate to a matter which is an excepted matter by virtue of paragraph 4 of Schedule 2 to the Northern Ireland Act 1998 (c. 47) (defence of the realm etc).

(8) In relation to any area not mentioned in subsection (2), (4) or (6), the appropriate licensing authority is the Secretary of State.

(9) In subsection (5)—

• “defence activity” means any activity relating to—

  (a)

  the defence of the realm;

  (b)

  the naval, military or air forces of the Crown, including reserve forces;

  (c)

  visiting forces;

  (d)

  international headquarters and defence organisations;

  (e)

  trading with the enemy and enemy property;

• “excepted activity” means the exercise of civil defence functions by any person otherwise than as a member of—

  (a)

  any force or organisation referred to in paragraphs (b) to (d) of the definition of “defence activity”, or

  (b)

  any other force or organisation established or maintained for the purposes of, or for purposes connected with, the defence of the realm;

• “petroleum” has the same meaning as in Part 3 of the Petroleum Act 1998 (c. 17) (see section 28(1) of that Act).

114 Meaning of “enforcement authority”

(1) This section has effect for determining who is an enforcement authority for any area.

(2) For the purposes of sections 90 to 97 and 102 to 105 (and any other provisions of this Part so far as relating to those sections) the appropriate licensing authority for any area is an enforcement authority for that area.

(3) For the purposes of sections 90, 92 (so far as relating to section 90) and 102 to 105 (and any other provisions of this Part (except sections 91 and 93 to 97) so far as relating to those sections) each of the following persons is also an enforcement authority—

(a) in relation to the relevant enforcement area (within the meaning of section 236), any marine enforcement officer (as defined in section 235);

(b) in relation to the relevant enforcement area (within the meaning of section 240), any person appointed under section 240;

(c) in relation to the relevant enforcement area (within the meaning of section 241), any person appointed under section 241;

(d) in relation to the Scottish offshore region, any person appointed under section 242.

(4) A person is an enforcement authority by virtue of subsection (3) (so far as relating to the sections specified in that subsection) only to the extent that the person may exercise powers for the purposes of enforcing this Part.

115 Interpretation of this Part

(1) In this Part—

• “appropriate enforcement authority”, in the case of any area and any provision of this Part, means any authority which is an enforcement authority for that area for the purposes of that provision;

• “the appropriate licensing authority” has the meaning given by section 113;

• “British aircraft” means an aircraft registered in the United Kingdom;

• “British marine structure” means a marine structure owned by or leased to an individual residing in, or a body corporate incorporated under the law of, any part of the United Kingdom;

• “British vessel” means a vessel—

  (a)

  which is registered in the United Kingdom,

  (b)

  which falls within section 1(1)(d) of the Merchant Shipping Act 1995 (c. 21) (small ships), or

  (c)

  which is exempt from registration under section 294 of that Act;

• “compliance notice” means a notice issued under section 90;

• “emergency safety notice” means a notice issued under section 104;

• “enforcement authority” has the meaning given by section 114;

• “fixed monetary penalty” has the meaning given by section 93(3);

• “licensable marine activity” is to be read in accordance with section 66;

• “licensing authority” means—

  (a)

  the Secretary of State;

  (b)

  the Welsh Ministers;

  (c)

  the Scottish Ministers;

  (d)

  the Department of the Environment in Northern Ireland;

• “marine licence” means a licence granted under this Part;

• “marine structure” means a platform or other artificial structure at sea, other than a pipeline;

• “remediation notice” means a notice issued under section 91;

• “stop notice” means a notice issued under section 102;

• “the UK marine licensing area” has the meaning given by section 66(4);

• “variable monetary penalty” has the meaning given by section 95(3);

• “vessel” includes—

  (a)

  hovercraft, and

  (b)

  any other craft capable of travelling on, in or under water, whether or not self-propelled.

(2) In this Part any reference to the environment includes a reference to any site (including any site comprising, or comprising the remains of, any vessel, aircraft or marine structure) which is of historic or archaeological interest.