Marine Bill as Introduced

Marine Bill

[AS INTRODUCED ]

CONTENTS

PART 1

THE NORTHERN IRELAND INSHORE REGION

1. The Northern Ireland inshore region

PART 2

MARINE PLANNING

Marine plans

2. Marine plans for Northern Ireland inshore region

3. Amendment of marine plan

4. Withdrawal of marine plan

5. Duty to keep relevant matters under review

Decisions affected by a marine plan

6. Decisions affected by a marine plan

Monitoring and reporting on marine plans

7. Monitoring of, and periodical reporting on, marine plans

Validity of marine plans and amendments

8. Validity of marine plans

9. Powers of the High Court on an application under section 8

Interpretation

10. Interpretation of this Part

PART 3

MARINE PROTECTION

Designation of MCZs

11. Designation of marine conservation zones

MCZs

12. Grounds for designation of MCZ

13. Further provision as to orders designating MCZs

Designation procedure

14. Consultation before designation

15. Publication of orders

16. Hearings

17. Review of orders

Duties of Department

18. Creation of network of conservation sites

19. Reports

Duties of public authorities

20. General duties of public authorities in relation to MCZs

21. Duties of public authorities in relation to certain decisions

22. Advice and guidance by the Department

23. Failure to comply with duties, etc.

Byelaws

24. Byelaws for protection of MCZs

25. Byelaws: procedure

26. Emergency byelaws

27. Interim byelaws for MCZ

28. Byelaws: supplementary

29. Hearings

Offences

30. Offence of contravening byelaws

31. Offence of damaging, etc. protected features of MCZ

32. Exceptions

Fixed monetary penalties

33. Fixed monetary penalties

34. Fixed monetary penalties: procedure

35. Fixed monetary penalties: further provision

Enforcement powers

36. Enforcement officers

37. The common enforcement powers

Supplementary

38. Repeals and transitional provisions

39. Interpretation of this Part

PART 4

MARINE LICENSING: GENERATING STATIONS

40. Special procedure for applications relating to generating stations

PART 5

SUPPLEMENTARY

41. Regulations and orders

42. Offences: companies, etc.

43. Disapplication of requirement for consent to certain prosecutions

44. Supplementary, incidental, consequential, transitional provision etc.

45. Crown application

46. Interpretation

47. Commencement

48. Short title

SCHEDULES:

Schedule 1 Marine plans: preparation and adoption

Schedule 2 Further provision about fixed monetary penalties under section 33

A

B I L L

TO

Provide for marine plans in relation to the Northern Ireland inshore region; to provide for marine conservation zones in that region; to make further provision in relation to marine licensing for certain electricity works in that region; and for connected purposes.

BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

PART 1

THE NORTHERN IRELAND INSHORE REGION

The Northern Ireland inshore region

1. -(1) In this Act the “Northern Ireland inshore region” means the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to Northern Ireland, including the bed and subsoil of the sea within that area.

(2) In this Act “sea” includes—

(a) any area submerged at mean high water spring tide,

(b) the waters of every estuary, river or channel, so far as the tide flows at mean high water spring tide.

(3) The area of sea referred to in subsection (2)(a) includes waters in any area -

(a) which is closed, whether permanently or intermittently, by a lock or other artificial means against the regular action of the tide, but

(b) into which seawater is caused or permitted to flow, whether continuously or from time to time, and

(c) from which seawater is caused or permitted to flow, whether continuously or from time to time.

(4) In relation to Part 3, subsections (1) to (3) are subject to section 11(2).

(5) The boundaries between the parts of the territorial sea of the United Kingdom adjacent to Northern Ireland and the parts not so adjacent are to be determined by reference to an Order in Council under section 98(8) of the Northern Ireland Act 1998 if, or to the extent that, the Order in Council is expressed to apply—

(a) for the purposes of this Act, or

(b) if no such provision has been made, for the general or residual purposes of that Act.

PART 2

MARINE PLANNING

Marine plans
Marine plans for Northern Ireland inshore region

2. -(1) The Department may prepare a marine plan for an area (a “marine plan area”) consisting of the whole or any part of the Northern Ireland inshore region.

(2) Where a marine policy statement governs marine planning for the Northern Ireland inshore region, the Department must seek to ensure that every part of that region is within an area for which a marine plan is in effect.

(3) A “marine plan” is a document which —

(a) has been prepared and adopted for a marine plan area by the Department in accordance with Schedule 1,

(b) states the policies of the relevant Northern Ireland departments (however expressed) for and in connection with the sustainable development of the area, and

(c) states that it is a marine plan prepared and adopted for the purposes of this section.

(4) A marine plan must identify (by means of a map or otherwise) the marine plan area for which it is a marine plan.

(5) Unless relevant considerations indicate otherwise, a marine plan must be in conformity -

(a) with any marine policy statement which governs marine planning for the marine plan area; and

(b) in the case of a plan for part of the Northern Ireland inshore region, with any marine plan in effect for the whole of that region.

(6) A marine plan must state whether it includes provision relating to retained functions.

(7) A marine plan may also include statements or information relating to policies contained in the plan .

(8) If to any extent a policy stated in a marine plan conflicts with any other statement or information in the plan, that conflict must be resolved in favour of the policy .

(9) A marine plan comes into effect when it has been published by the Department in accordance with Schedule 1.

(10) For the purposes of this Part a marine policy statement “governs marine planning” for an area if -

(a) it has been adopted by the Department under Schedule 5 to the 2009 Act,

(b) it has been published in accordance with paragraph 12 of that Schedule,

(c) it has not been replaced or withdrawn, and

(d) the Department has not withdrawn from it.

(11) For the purposes of this Part “the relevant Northern Ireland departments” are -

(a) the Department;

(b) the Department of Agriculture and Rural Development;

(c) the Department of Culture, Arts and Leisure;

(d) the Department of Enterprise, Trade and Investment; and

(e) the Department for Regional Development.

Amendment of marine plan

3. -(1) The Department may amend a marine plan.

(2) The provisions of this Part that relate to the preparation, adoption, publication and coming into effect of a marine plan also apply in relation to amendments of a marine plan.

(3) Any reference in this Act to a marine plan includes a reference to a marine plan as amended.

Withdrawal of marine plan

4. -(1) A marine plan may be withdrawn at any time, but only in accordance with the following provisions of this section.

(2) If, after consultation with the other relevant Northern Ireland departments, the Department decides to withdraw a marine plan—

(a) it is to publish notice of the withdrawal of the plan in the Belfast Gazette, and

(b) the marine plan is withdrawn as from the date on which the notice is so published.

(3) If at any time the Secretary of State decides to withdraw agreement previously given under paragraph 15(2) of Schedule 1 to a marine plan—

(a) the Secretary of State is to give notice of that decision to the Department,

(b) within 7 days of receiving that notice, the Department must publish notice of the withdrawal of the marine plan in the Belfast Gazette, and

(c) the marine plan is withdrawn as from the date on which the notice is so published.

(4) Where a marine plan is withdrawn under this section, the Department must take such further steps as it considers appropriate to secure that the withdrawal of the marine plan is brought to the attention of interested persons.

(5) In this section “ interested persons ” means—

(a) any persons appearing to the Department to be likely to be interested in, or affected by, the withdrawal of the marine plan, and

(b) members of the general public.

Duty to keep relevant matters under review

5. -(1) The Department must keep under review the matters which may be expected to affect the exercise of its functions relating to—

(a) the identification of areas which are to be marine plan areas, and

(b) the preparation, adoption, review, amendment or withdrawal of marine plans for those areas.

The reference in paragraph (b) to review is a reference to the functions of the Department under section 7.

(2) The matters include—

(a) the physical, environmental, social, cultural and economic characteristics of the Northern Ireland inshore region and of the living resources which the region supports;

(b) the purposes for which any part of the region is used;

(c) the communications, energy and transport systems of the region;

(d) any other considerations which may be expected to affect those matters.

(3) The matters also include—

(a) any changes which could reasonably be expected to occur in relation to any such matter;

(b) the effect that any such changes may have in relation to the sustainable development of the region, its natural resources, or the living resources dependent on the region.

(4) The reference in subsection (2)(a) to the cultural characteristics of the Northern Ireland inshore region includes a reference to characteristics of that region which are of a historic or archaeological nature.

Decisions affected by a marine plan
Decisions affected by a marine plan

6. -(1) A public authority must take any authorisation or enforcement decision in accordance with any appropriate marine plan, unless relevant considerations indicate otherwise.

(2) If a public authority takes an authorisation or enforcement decision otherwise than in accordance with any appropriate marine plan, the public authority must state its reasons.

(3) A public authority must have regard to any appropriate marine plan in taking any decision—

(a) which relates to the exercise of any function capable of affecting the whole or any part of the Northern Ireland inshore region, but

(b) which is not an authorisation or enforcement decision.

(4) An “authorisation or enforcement decision” is any of the following—

(a) the determination of any application (whenever made) for authorisation of the doing of any act which affects or might affect the whole or any part of the Northern Ireland inshore region,

(b) any decision relating to any conditions of such an authorisation,

(c) any decision about extension, replacement, variation, revocation or withdrawal of any such authorisation or any such conditions (whenever granted or imposed),

(d) any decision relating to the enforcement of any such authorisation or any such conditions,

(e) any decision relating to the enforcement of any prohibition or restriction (whenever imposed) on the doing of any act, or of any act of any description, falling within paragraph (a).

(5) In this section “authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general.

(6) Subject to subsection (7), to the extent that the decision relates to a marine plan area, any marine plan which is in effect for that area is an appropriate marine plan.

(7) But in relation to the exercise of retained functions by a public authority a marine plan is only an appropriate marine plan if -

(a) it contains a statement under section 2(6) that it includes provision relating to retained functions,

(b) it was adopted with the agreement of the Secretary of State under paragraph 15(2) of Schedule 1, and

(c) it was prepared and adopted at a time when a marine policy statement was in effect which governed marine planning for the Northern Ireland inshore region.

Monitoring and reporting on marine plans
Monitoring of, and periodical reporting on, marine plans

7. -(1) For so long as a marine plan is in effect, the Department must keep under review -

(a) the effects of the policies in the marine plan;

(b) the effectiveness of those policies in securing that the objectives for which the marine plan was prepared and adopted are met;

(c) the progress being made towards securing those objectives;

(d) if a marine policy statement governs marine planning for the Northern Ireland inshore region, the progress being made towards securing that the objectives for which the marine policy statement was prepared and adopted are met in that region.

(2) The Department must from time to time prepare and publish a report on the matters kept under review pursuant to subsection (1).

(3) After publishing a report under subsection (2), the Department must -

(a) lay a copy of the report before the Assembly; and

(b) decide whether or not to amend or replace the marine plan.

(4) The first report under subsection (2) must be published before the expiration of 3 years beginning with the date on which the marine plan was adopted; and successive reports under that subsection must be published at intervals of no more than 3 years following the date of publication of the previous report.

(5) Any reference in this section to the replacement of a marine plan is a reference to—

(a) preparing and adopting, in accordance with the provisions of this Part, a fresh marine plan (whether or not for the identical marine plan area), and

(b) if the Department has not already done so, withdrawing the marine plan that is to be replaced.

(6) The Department must from time to time prepare and lay before the Assembly a report which—

(a) identifies any marine plans which the Department has prepared and adopted;

(b) describes any intentions the Department may have for the amendment of any marine plans which it has prepared and adopted;

(c) describes any intentions the Department may have for the preparation and adoption of any further marine plans.

(7) The first report prepared under subsection (6) must be laid before the Assembly before the expiration of the period of 6 years beginning with the date of the passing of this Act; and successive reports under that subsection must be laid at intervals of no more than 6 years following the laying of the previous report.

(8) No report under subsection (6) is required to be laid in a case where the period of 6 years following the laying of the previous report ends on or after 1st January 2030.

Validity of marine plans and amendments
Validity of marine plans

8. -(1) This section applies to—

(a) any marine plan,

(b) any amendment of a marine plan.

(2) Anything falling within the paragraphs of subsection (1) is referred to in this section as a “relevant document”.

(3) A relevant document must not be questioned in any legal proceedings, except in so far as is provided by the following provisions of this section.

(4) A person aggrieved by a relevant document may make an application to the High Court on any of the following grounds—

(a) that the document is not within the appropriate powers;

(b) that a procedural requirement has not been complied with.

(5) Any such application must be made not later than 6 weeks after the publication of the relevant document.

(6) In this section -

“the appropriate powers” means the powers conferred by sections 2 to 5 or Schedule 1;

“procedural requirement” means any requirement under the appropriate powers which relates to the preparation, adoption or publication of a relevant document.

Powers of the High Court on an application under section 8

9. -(1) This section applies in any case where an application under section 8 is made to the High Court.

(2) The court may make an interim order suspending the operation of the relevant document—

(a) wholly or in part,

(b) generally or as it affects a particular area;

and an interim order has effect until the proceedings are finally determined.

(3) Subsection (4) applies if the court is satisfied as to any of the following—

(a) that a relevant document is to any extent outside the appropriate powers;

(b) that the interests of the applicant have been substantially prejudiced by failure to comply with a procedural requirement.

(4) The court may—

(a) quash the relevant document;

(b) remit the relevant document to the Department.

(5) If the court remits the relevant document under subsection (4)(b), it may give directions as to the action to be taken in relation to the relevant document.

(6) Directions under subsection (5) may in particular—

(a) require the relevant document to be treated (generally or for specified purposes) as not having been adopted or published;

(b) require specified steps in the process that has resulted in the adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;

(c) require action to be taken by the Department.

(7) The court’s powers under subsections (4) and (5) are exercisable in relation to the whole or any part of the relevant document.

(8) Expressions used in this section and in section 8 have the same meaning in this section as they have in that section.

Interpretation
Interpretation of this Part

10. - (1) In this Part—

“adopted” -

(a) in the case of a marine policy statement, is to be read in accordance with section 44 of, and paragraph 12 of Schedule 5 to, the 2009 Act;

(b) in the case of a marine plan, is to be read in accordance with section 2 of, and paragraph 15 of Schedule 1 to, this Act,

“marine plan” has the meaning given in section 2;

“marine plan area” has the meaning given in section 2;

“marine policy statement” is to be construed in accordance with sections 44 and 47 of the 2009 Act;

“the relevant Northern Ireland departments” has the meaning given in section 2(11);

“retained functions” has the meaning given in section 60 of the 2009 Act.

(2) Any reference in this Part to a marine policy statement governing marine planning for an area is to be construed in accordance with section 2(10).

PART 3

MARINE PROTECTION

Designation of MCZs
Designation of marine conservation zones

11. -(1) The Department may by order designate any area of sea falling within the Northern Ireland inshore region as a marine conservation zone (an “MCZ”).

(2) For the purposes of this Part “the Northern Ireland inshore region” and “the sea” do not include any waters upstream of the fresh-water limit of estuarial waters.

(3) In this Part “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 Community action in the field of water policy).

(4) The reference in subsection (1) to an area of sea includes a reference to any island in the sea, whether or not any part of it lies above mean high water spring tide.

(5) The Department may not designate any area of sea under this section without the agreement of the Secretary of State.

MCZs
Grounds for designation of MCZ

12. - (1) The Department may make an order under section 11 designating an area as an MCZ if it thinks that it is desirable to do so for the purpose of conserving—

(a) marine flora or fauna;

(b) marine habitats or types of marine habitat;

(c) features of geological or geomorphological interest.

(2) The order must state—

(a) the protected feature or features;

(b) the conservation objectives for the MCZ.

(3) Any reference in this Part to the conservation objectives stated for an MCZ is a reference to the conservation objectives stated for the MCZ under subsection (2)(b).

(4) The reference in subsection (1)(a) to conserving marine flora or fauna includes, in particular, a reference to conserving any species that is rare or threatened because of—

(a) the limited number of individuals of that species, or

(b) the limited number of locations in which that species is present.

(5) The references in subsection (1)(a) and (b) to conserving marine flora or fauna or habitat include references to conserving the diversity of such flora, fauna or habitat, whether or not any or all of them are rare or threatened.

(6) Any reference in this Part to conserving a thing includes references to—

(a) assisting in its conservation;

(b) enabling or facilitating its recovery or increase.

(7) In considering whether it is desirable to designate an area as an MCZ, the Department may have regard to any economic or social consequences of doing so.

(8) The reference in subsection (7) to any social consequences of designating an area as an MCZ includes a reference to any consequences of doing so for any sites in that area (including any sites comprising, or comprising the remains of, any vessel, aircraft or marine installation) which are of historic or archaeological interest.

Further provision as to orders designating MCZs

13. -(1) An order under section 11 designating an area as an MCZ must identify the boundaries of the area designated.

(2) The boundary of an MCZ may be determined by, or by reference to, mean high water spring tide.

(3) An MCZ may (in addition to an area of sea) include an area of the seashore lying above mean high water spring tide if—

(a) the area of seashore adjoins the area of sea; and

(b) any of the conditions in subsection (4) is satisfied.

(4) The conditions are that -

(a) the protected feature or features leading to the designation of the area of sea is or are also present in the area of seashore;

(b) the area of sea is designated for the purpose of conserving marine flora or fauna which are dependent (wholly or in part) on anything which takes place in, or is present in, the area of seashore;

(c) without the inclusion of the area of seashore, the identification of the boundary of the MCZ (either in the order designating the area or on the ground for the purposes of exercising functions in relation to it) would be impossible or impracticable.

(5) An order under section 11 designating an area as an MCZ—

(a) must designate an area of land (whether or not that land is covered by water), and

(b) may designate some or all of the water covering that land.

Designation procedure
Consultation before designation

14. - (1) Before making an order under section 11, the Department must comply with subsections (2) to (4) .

(2) The Department must publish notice of its proposal to make the order.

(3) The notice under subsection (2) must—

(a) be published in such manner as the Department thinks is most likely to bring the proposal to the attention of any persons who are likely to be affected by the making of the order;

(b) contain a statement of the terms of the proposed order.

(4) The Department must consult -

(a) the Secretary of State; and

(b) any other persons who the Department thinks are likely to be interested in, or affected by, the making of the order.

(5) If the Department fails to make the order before the end of the period of 12 months beginning with the date on which notice was published under subsection (2), then anything done by the Department for the purposes of complying with subsections (2) to (4) of this section is, for those purposes, to be treated as not having been done.

(6) In a case where the Department thinks that there is an urgent need to protect the area proposed to be designated as an MCZ, the Department need not comply with subsections (2), (3) and (4)(b).

(7) In such a case, the order designating the area as an MCZ remains in operation for a period not exceeding two years, unless the Department makes a further order before the end of that period confirming the designation.

(8) Before making such an order, the Department must comply with subsections (2) to (4) (and subsection (5) applies accordingly).

Publication of orders

15. -(1) T his section applies where an order has been made under section 11.

(2) The Department must publish notice of the making of the order.

(3) The notice under subsection (2) must—

(a) be published in such manner as the Department thinks is most likely to bring the order to the attention of any persons who are likely to be affected by the making of it;

(b) give an address at which a copy of the order may be inspected.

(4) The Department must—

(a) make a copy of the order available for inspection at the address specified under subsection (3)(b) at all reasonable hours without payment;

(b) provide a copy of the order to any person who requests one.

(5) The Department may charge a fee, not exceeding its costs, for providing a copy under subsection (4)(b).

Hearings

16. -(1) This section applies where the Department has the function of deciding whether to make an order under section 11 designating an area as an MCZ.

(2) The Department may, before making that decision, give to any person the opportunity of—

(a) appearing before and being heard by a person appointed for that purpose;

(b) providing written representations to such a person.

(3) The Department may make regulations providing for the procedure to be followed (including decisions as to costs) at hearings held under subsection (2).

(4) A person appointed under subsection (2) must make a report to the Department of any oral or written representations made under that subsection.

Review of orders

17. The Department must review any order it has made under section 11 if the Department receives representations that the order should be amended or revoked from—

(a) the Secretary of State,

(b) the Scottish Ministers, or

(c) the department of the Government of Ireland with responsibility for marine conservation in any area adjoining or adjacent to the area designated by the order.

Duties of Department
Creation of network of conservation sites

18. -(1) I n order to contribute to the achievement of the objective in subsection (2), the Department must designate MCZs under section 11.

(2) The objective is that the MCZs designated by the Department, taken together with -

(a) any marine conservation zones designated under section 116 of the 2009 Act;

(b) any nature conservation marine protection areas designated under section 67 of the Marine (Scotland) Act 2010; and

(c) any relevant conservation sites in the UK marine area,

form a network which satisfies the conditions in subsection (3).

(3) The conditions are—

(a) that the network contributes to the conservation or improvement of the marine environment in the UK marine area;

(b) that the features which are protected by the sites comprised in the network represent the range of features present in the UK marine area;

(c) that the designation of sites comprised in the network reflects the fact that the conservation of a feature may require the designation of more than one site.

(4) For the purposes of subsection (2), the following are “relevant conservation sites”—

(a) a European marine site within the meaning of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995;

(b) a European offshore marine site within the meaning of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007;

(c) the whole or part of any area of special scientific interest within the meaning of Part 4 of the Environment (Northern Ireland) Order 2002;

(d) the whole or part of any Ramsar site, that is to say any site designated under the Convention on Wetlands of International Importance especially as Waterfowl Habitat signed at Ramsar on 2nd February 1971, as amended by—

(i) the Protocol known as the Paris Protocol done at Paris on 3rd December 1982; and

(ii) the amendments known as the Regina Amendments adopted at the Extraordinary Conference of the Contracting Parties held at Regina, Saskatchewan, Canada, between 28th May and 3rd June 1987; and

(iii) any further amendments coming into force from time to time.

(5) When complying with the duty imposed by subsection (1), the Department must have regard to any obligations under EU or international law that relate to the conservation or improvement of the marine environment.

(6) Before the end of the period of 2 months beginning with the date on which this section comes into operation, the Department must—

(a) prepare a statement setting out such principles relating to the achievement of the objective in subsection (2) as the Department intends to follow when complying with the duty imposed by subsection (1), and

(b) lay a copy of the statement before the Assembly.

(7) A statement prepared by the Department under this section may also set out other matters relating to the achievement of that objective which the Department intends to take into account when complying with the duty imposed by subsection (1).

(8) The Department must—

(a) keep under review any statement it has prepared under this section, and

(b) if it considers it appropriate in consequence of a review, prepare a revised statement of the principles referred to in subsection (6) and lay a copy of it before the Assembly.

(9) In this section -

“feature” means anything falling within paragraphs (a) to (c) of section 12(1);

“UK marine area” has the meaning given by section 42 of the 2009 Act.

Reports

19. -(1) Before the end of every relevant period, the Department must lay before the Assembly a report setting out—

(a) the extent to which, in the opinion of the Department, the objective in section 18(2) has been achieved;

(b) any further steps which, in the opinion of the Department, are required to be taken in order to contribute to the achievement of that objective.

(2) The report must also contain the following information—

(a) the number of MCZs which the Department has designated during the relevant period;

(b) in relation to each such MCZ—

(i) the size of the MCZ, and

(ii) the conservation objectives stated for the MCZ;

(c) the number of MCZs designated by the Department in which the following activities are prohibited or significantly restricted—

(i) any licensable marine activity;

(ii) fishing for or taking animals or plants from the sea;

(d) information about any amendments which the Department has made to any orders made under section 11;

(e) the extent to which, in the opinion of the Department, the conservation objectives stated for each MCZ which it has designated have been achieved;

(f) any further steps which, in the opinion of the Department, are required to be taken in relation to any MCZ in order to achieve the conservation objectives stated for it.

(3) In this section—

“licensable marine activity” has the same meaning as in Part 4 of the 2009 Act;

“ relevant period ” means—

(a) the period beginning on the date on which this section comes into operation and ending on 31 December 2018;

(b) each subsequent period of 6 years.

Duties of public authorities
General duties of public authorities in relation to MCZs

20. -(1) This section applies to any public authority having any function the exercise of which is capable of affecting (other than insignificantly)—

(a) the protected features of an MCZ;

(b) any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependent.

(2) Every public authority to which this section applies must (so far as is consistent with their proper exercise)—

(a) exercise its functions in the manner which the authority considers best furthers the conservation objectives stated for the MCZ;

(b) where it is not possible to exercise its functions in a manner which furthers those objectives, exercise them in the manner which the authority considers least hinders the achievement of those objectives.

(3) If a public authority (other than the Department) considers that any of its functions is such that the exercise of the function would or might significantly hinder the achievement of the conservation objectives stated for the MCZ, it must inform the Department of that fact.

(4) Subject to subsection (6), subsection (5) applies in any case where a public authority (other than the Department) intends to do an act which is capable of affecting (other than insignificantly)—

(a) the protected features of an MCZ;

(b) any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependent.

(5) If the authority believes that there is or may be a significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ, the authority must notify the Department of that fact.

(6) Subsection (5) does not apply where—

(a) the Department has given the authority advice or guidance under section 22 in relation to acts of a particular description,

(b) the act which the authority intends to do is an act of that description, and

(c) the advice or guidance has not ceased to apply.

(7) Where the authority has given notification under subsection (5), it must wait until the expiry of the period of 28 days beginning with the date of the notification before deciding whether to do the act.

(8) Subsection (7) does not apply where—

(a) the Department notifies the authority that it need not wait until the end of the period referred to in that subsection, or

(b) the authority thinks that there is an urgent need to do the act.

(9) If a public authority (other than the Department) considers that a relevant event has occurred, it must inform the Department of that fact.

(10) A “relevant event” is any act—

(a) in relation to which the public authority exercises functions,

(b) which the authority believes to be an offence, and

(c) which the authority considers will or may significantly hinder the achievement of the conservation objectives for an MCZ.

(11) In carrying out its duties under this section a public authority must have regard to any advice or guidance given by the Department under section 22.

Duties of public authorities in relation to certain decisions

21. -(1) This section applies where—

(a) a public authority (other than the Department) has the function of determining an application (whenever made) for authorisation of the doing of an act, and

(b) the act is capable of affecting (other than insignificantly)—

(i) the protected features of an MCZ;

(ii) any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependent.

(2) If the authority believes that there is or may be a significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ, the authority must notify the Department of that fact.

(3) Where the authority has given notification under subsection (2), it must wait until the expiry of the period of 28 days beginning with the date of the notification before deciding whether to grant authorisation for the doing of the act.

(4) Subsection (3) does not apply where—

(a) the Department notifies the authority that it need not wait until the end of the period referred to in that subsection, or

(b) the authority thinks that there is an urgent need to grant authorisation for the doing of the act.

(5) The authority must not grant authorisation for the doing of the act unless the condition in subsection (6) or the condition in subsection (7) is met.

(6) The condition in this subsection is that the person seeking the authorisation satisfies the authority that there is no significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ.

(7) The condition in this subsection is that, although the person seeking the authorisation is not able to satisfy the authority as mentioned in subsection (6), that person satisfies the authority that—

(a) there is no other means of proceeding with the act which would create a substantially lower risk of hindering the achievement of conservation objectives stated for the MCZ,

(b) the benefit to the public of proceeding with the act clearly outweighs the risk of damage to the environment that will be created by proceeding with it, and

(c) the person seeking the authorisation will undertake, or make arrangements for the undertaking of, measures of equivalent environmental benefit to the damage which the act will or is likely to have in or on the MCZ.

(8) The reference in subsection (7)(a) to other means of proceeding with an act includes a reference to proceeding with it -

(a) in another manner, or

(b) at another location.

(9) In a case falling within subsection (7), the authority must, if it has power to grant the authorisation subject to conditions, exercise that power so as to make it a condition of the authorisation that the measures mentioned in subsection (7)(c) are undertaken.

(10) In carrying out its duties under this section a public authority must have regard to any advice or guidance given by the Department under section 22. (11) In this section -

“authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general;

“damage” includes the prevention of an improvement .

Advice and guidance by the Department

22. - (1) The Department may give advice and guidance as to—

(a) the matters which are capable of damaging or otherwise affecting any protected feature or features of an MCZ;

(b) the matters which are capable of affecting any ecological or geomorphological process on which the conservation of any protected feature or features is (wholly or in part) dependent;

(c) how any conservation objectives stated for an MCZ may be furthered, or how the achievement of any such objectives may be hindered;

(d) how the effect of any activity or activities on any MCZ, or such zones generally, may be mitigated;

(e) which activities are, or are not, of equivalent environmental benefit (for the purposes of section 21(7)(c)) to any particular damage to the environment (within the meaning of that provision).

(2) Advice or guidance may be given—

(a) either in relation to a particular MCZ or such zones generally;

(b) either to a particular public authority or public authorities generally.

(3) The Department must give advice to any other public authority if the authority requests it.

Failure to comply with duties, etc.

23. -(1) This section applies if, in the opinion of the Department, any other public authority has failed -

(a) to comply with the duty imposed by section 20(2) or the duty imposed by section 21(5);

(b) to act in accordance with advice or guidance given by the Department under section 22.

(2) Where this section applies—

(a) the Department may request from the public authority an explanation for the failure, and

(b) on such a request, the authority must provide such an explanation in writing.

Byelaws
Byelaws for protection of MCZs

24. -(1) The Department may make byelaws for the purpose of furthering the conservation objectives stated for an MCZ.

(2) Byelaws under this section may be made so as to apply to any area in the Northern Ireland inshore region or in any other part of Northern Ireland.

(3) The provision that may be made by byelaws under this section includes, in particular, provision—

(a) prohibiting or restricting entry into, or any movement or other activity within, the MCZ by persons or animals;

(b) prohibiting or restricting entry into, or any movement or other activity within, the MCZ by vessels or (where appropriate) vehicles;

(c) restricting the speed at which any vessel may move in the MCZ or in any specified area outside the MCZ where that movement might hinder the conservation objectives stated for the MCZ;

(d) prohibiting or restricting the anchoring of any vessel within the MCZ;

(e) prohibiting or restricting the killing, taking, destruction, molestation or disturbance of animals or plants of any description in the MCZ;

(f) prohibiting or restricting the doing of anything in the MCZ which would interfere with the sea bed or damage or disturb any object in the MCZ.

(4) The provision that may be made by byelaws under this section also includes provision prohibiting or restricting entry into, or any movement or other activity on, any part of the seashore that adjoins the MCZ by persons, animals or vehicles.

(5) Byelaws under this section may provide for the Department to issue permits authorising anything which would, apart from such a permit, be unlawful under the byelaws.

(6) The Department may attach to a permit under subsection (5) any condition which the Department thinks appropriate to attach to that permit.

(7) Byelaws under this section may be made subject to specified exceptions.

(8) Byelaws under this section may make different provision for different cases, including (in particular)—

(a) different parts of the MCZ;

(b) different times of the year;

(c) different means or methods of carrying out any activity.

(9) In this section “specified” means specified in the byelaws.

Byelaws: procedure

25. -(1) Subject to subsection (10), before making any byelaws under section 24, the Department must comply with subsections (2) to (6).

(2) The Department must place a copy of a draft of the byelaws in such place or places as the Department thinks is or are likely to be most convenient for the purpose of enabling the draft to be inspected by persons likely to be affected by the making of the byelaws.

(3) The Department must provide a copy of a draft of the byelaws to any person who requests one. (4) The Department may charge a fee, not exceeding its costs, for providing a copy under subsection (3).

(5) The Department must publish notice of its proposal to make the byelaws.

(6) The notice under subsection (5) must—

(a) be published in such manner as the Department thinks is most likely to bring the proposal to the attention of any persons who are likely to be affected by the making of the byelaws;

(b) state where the copy or copies of the draft byelaws have been placed by the Department in accordance with subsection (2);

(c) state the time within which representations about the byelaws must be made to the Department.

(7) Byelaws made under section 24 do not have effect until they are confirmed by the Secretary of State; and byelaws which are confirmed come into operation—

(a) on such date as may be determined by the Secretary of State, or

(b) if no such date is determined, one month after the date on which they are confirmed.

(8) As soon as is reasonably practicable after the confirmation of byelaws made under section 24, the Department must publish notice of the making of the byelaws.

(9) The notice under subsection (8) must—

(a) be published in such manner as the Department thinks is most likely to bring the byelaws to the attention of any persons who are likely to be affected by the making of the byelaws;

(b) state that a copy of the byelaws may be inspected at the offices of the Department.

(10) Nothing in this section applies where the Department thinks that there is an urgent need to protect an MCZ.

Emergency byelaws

26. - (1) Where the Department thinks that there is an urgent need to protect an MCZ, byelaws made by it for that purpose have effect without being confirmed by the Secretary of State.

(2) Byelaws that have effect by virtue of this section (“emergency byelaws”)—

(a) come into operation on a date specified in the byelaws, and

(b) remain in operation (unless revoked) for such period, not exceeding 12 months, as is specified in the byelaws.

(3) The Department must publish notice of the making of emergency byelaws.

(4) The notice under subsection (3) must—

(a) be published in such manner as the Department thinks is most likely to bring the byelaws to the attention of any persons who are likely to be affected by the making of the byelaws;

(b) state that a copy of the byelaws may be inspected at the offices of the Department;

(c) state that the Secretary of State has power to revoke the byelaws and that any person affected by the making of the byelaws may make representations to the Secretary of State.

(5) The Secretary of State may revoke emergency byelaws.

(6) The Department must keep under review the need for emergency byelaws to remain in operation.

(7) The Department may, by further byelaws, provide that emergency byelaws are to remain in operation for such period beyond that specified under subsection (2)(b) as is specified in the further byelaws.

(8) The Department may not make byelaws under subsection (7) unless—

(a) it intends to make byelaws under section 24 in respect of the MCZ in accordance with section 25 (“the permanent byelaws”), and

(b) it has, in respect of the permanent byelaws, complied with section 25(5).

(9) A period specified under subsection (7) may not exceed 6 months.

Interim byelaws for MCZ

27. - (1) The Department may make byelaws for the purpose of protecting any feature in an area in Northern Ireland if the Department thinks—

(a) that there are or may be reasons for the Department to consider whether to designate the area as an MCZ, and

(b) that there is an urgent need to protect the feature.

(2) In this Part “ interim byelaws ” means byelaws made under subsection (1).

(3) Interim byelaws must contain a description of the boundaries of the area to which they apply (which must be no greater than is necessary for the purpose of protecting the feature in question).

(4) Subsections (2) to (9) of section 24 apply to interim byelaws as they apply to byelaws made under that section, except that any reference to an MCZ is to be read as a reference to the area to which the interim byelaws apply.

(5) Interim byelaws—

(a) come into operation on a date specified in the byelaws, and

(b) remain in operation (unless revoked) for such period, not exceeding 12 months, as is specified in the byelaws.

(6) The Department must publish notice of the making of interim byelaws.

(7) The notice under subsection (6) must—

(a) be published in such manner as the Department thinks is most likely to bring the byelaws to the attention of any persons who are likely to be affected by the making of the byelaws;

(b) state that a copy of the byelaws may be inspected at the offices of the Department;

(c) state that the Secretary of State has power to revoke the byelaws and that any person affected by the making of the byelaws may make representations to the Secretary of State.

(8) The Secretary of State may revoke interim byelaws.

(9) The Department must keep under review the need for interim byelaws to remain in operation.

(10) The Department may by further byelaws extend the period for which interim byelaws remain in operation; but interim byelaws may not by virtue of this subsection remain in operation for an aggregate period exceeding 12 months.

(11) If, while interim byelaws are in operation, the Department gives notice of a proposal to make an order under section 11 designating any part of the area in question as an MCZ, the Department may direct that interim byelaws are to remain in operation—

(a) until the Department has decided whether to make the order under section 11;

(b) if the Department decides to make such an order, until that order comes into effect.

(12) The Department must publish a direction under subsection (11) in such manner as the Department thinks is most likely to bring the direction to the attention of any persons who are likely to be affected by the making of it.

(13) In this section “ feature ” means any flora, fauna, habitat or feature which could be a protected feature if the area in question were designated as an MCZ.

Byelaws: supplementary

28. -(1) This section applies to byelaws made under section 24 or 27.

(2) The Department must—

(a) make a copy of any byelaws to which this section applies available for inspection at its offices at all reasonable hours without payment;

(b) provide a copy of any such byelaws to any person who requests one.

(3) The Department may charge a fee, not exceeding its costs, for providing a copy under subsection (2)(b).

(4) In the case of byelaws made under section 24 in accordance with section 25, subsections (2) and (3) apply only after the byelaws have been confirmed under section 25(7).

(5) Byelaws to which this section applies are not statutory rules for the purposes of the Statutory Rules (Northern Ireland) Order 1979.

Hearings

29. -(1) This section applies where the Secretary of State has the function of—

(a) deciding (under section 25(7)) whether to confirm byelaws made under section 24;

(b) deciding (under section 26(5)) whether to revoke emergency byelaws;

(c) deciding (under section 27(8)) whether to revoke interim byelaws.

(2) This section also applies where the Department has the function of—

(a) deciding whether to make byelaws under section 24;

(b) deciding whether to make interim byelaws under section 27.

(3) The Secretary of State or (as the case may be) the Department may, before making that decision, give to any person the opportunity of—

(a) appearing before and being heard by a person appointed for that purpose;

(b) providing written representations to such a person.

(4) The Department may make regulations providing for the procedure to be followed (including decisions as to costs) at hearings held under subsection (3).

(5) A person appointed under subsection (3) must make a report to the Secretary of State or (as the case may be) the Department of any oral or written representations made under that subsection.

Offences
Offence of contravening byelaws

30. -(1) It is an offence for a person to contravene any byelaws made under section 24 or 27.

(2) A person who is guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) 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 Northern Ireland.

Offence of damaging, etc. protected features of MCZ

31. -(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, 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—

(a) intentionally or recklessly kills or injures any animal in an MCZ which is a protected feature of that MCZ,

(b) intentionally picks or collects, or intentionally or recklessly cuts, uproots or destroys, any plant in an MCZ which is a protected feature of that MCZ,

(c) intentionally or recklessly takes anything from an MCZ which is, or forms part of, a protected feature of that MCZ, or

(d) intentionally or recklessly destroys or damages any habitat or feature which is a protected feature of an MCZ.

(3) For the purposes of determining whether anything done by a person in relation to a protected feature is a prohibited act for the purposes of subsection (1), it is immaterial whether the person knew, or ought to have known, that the feature was a protected feature. (4) A person who is guilty of an offence under this section is liable—

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

(b) on conviction on indictment, to a fine.

(5) 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.

(6) 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 Northern Ireland.

Exceptions

32. -(1) A person is not guilty of an offence under section 30 or 31 if the act which is alleged to constitute the offence—

(a) was done in accordance with section 20(2) by a public authority;

(b) was expressly authorised by an authorisation granted in accordance with section 21, or was necessarily incidental to such an act;

(c) was done in accordance with a permit issued by the Department (whether under section 24(5) or otherwise);

(d) was necessary in the interests of 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, aircraft or marine installation;

(f) was done for the purpose of saving life.

(2) Subsection (1)(e) does not apply where the necessity was due to the fault of the person or of some other person acting under the person’s direction or control.

(3) A person is not guilty of an offence under section 30 by reason of doing anything that is an offence under section 31.

(4) It is a defence for a person who is charged with an offence under section 31 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

(ii) an act done in connection with such an act, and

(b) the effect of the act on the protected feature in question could not reasonably have been avoided.

(5) The Department may by order amend this section so as to remove, or restrict the application of, the defence provided by subsection (4).

Fixed monetary penalties
Fixed monetary penalties

33. -(1) The Department may by order make provision to confer on the Department the power by notice to impose a fixed monetary penalty on a person in relation to an offence under section 30.

(2) Provision under this section may only confer such a power in relation to a case where the Department is satisfied beyond reasonable doubt that the person has committed the offence.

(3) For the purposes of this Part a “fixed monetary penalty” is a requirement to pay to the Department a penalty of a prescribed amount.

(4) The amount of the fixed monetary penalty that may be imposed in relation to 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.

Fixed monetary penalties: procedure

34. -(1) Provision under section 33 must secure the results in subsection (2).

(2) Those results are that—

(a) where the Department proposes to impose a fixed monetary penalty on a person, the Department must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),

(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 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 Department in relation to the proposed imposition of the fixed monetary penalty, and

(ii) the Department must at the end of the period for making representations and objections decide whether to impose the fixed monetary penalty,

(d) where the Department decides to impose the fixed monetary 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 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 Department may not impose 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 is received, and

(f) the period within which representations and objections may be made, which must not exceed the period of 28 days beginning with the day on which the notice of intent is received.

(4) Provision pursuant to subsection (2)(c)(ii)—

(a) must secure that the Department may not decide to impose a fixed monetary penalty on a person where the Department is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence in relation to which the penalty is proposed to be imposed, and

(b) may include provision for other circumstances in which the Department may not decide to impose a fixed monetary penalty.

(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,

(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 Department include 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.

(7) In this section “ prescribed ” means prescribed in an order made under section 33.

Fixed monetary penalties: further provision

35. Schedule 2 (which makes further provision about fixed monetary penalties) has effect.

Enforcement powers
Enforcement officers

36. -(1) The Department may appoint persons for the purposes of enforcing -

(a) any byelaws made under section 24 or 27 of this Act; and

(b) section 31 of this Act.

(2) For the purposes of enforcing those provisions, a person appointed under this section has the common enforcement powers (see section 37).

(3) Subject as follows, those powers may be exercised in the Northern Ireland inshore region and in any other part of Northern Ireland.

(4) Those powers may not be exercised in relation to any ship belonging to Her Majesty and forming part of the armed forces. (5) Those powers may not be exercised in relation to any vessel within subsection (6) unless, in the case of a third country vessel (other than a vessel falling within paragraph (b) or (c) of that subsection), the United Kingdom is entitled under international law to exercise those powers without the consent of the flag state.

(6) The vessels are—

(a) a third country vessel;

(b) a warship that is being used by the government of a State other than the United Kingdom;

(c) any other vessel that is being used by such a government for any non-commercial purpose.

(7) In this section—

“flag state”, in relation to a vessel, means the State whose flag the vessel is flying or is entitled to fly;

“third country vessel” means a vessel which -

(a) is flying a 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.

(8) Sections 289 to 292 of the 2009 Act (which provide for the identification, liability and protection of enforcement officers under that Act) apply to a person appointed under this section as they apply to such enforcement officers, but with the substitution -

(a) for references to any power conferred by Part 8 of the 2009 Act of references to any of the common enforcement powers conferred by subsection (2);

(b) for references to functions under that Act of references to functions under this Part; and

(c) for the reference in section 292(10) to the United Kingdom of a reference to Northern Ireland.

The common enforcement powers

37. -(1) For the purposes of this Part, the common enforcement powers are the powers set out in Chapter 2 of Part 8 of the 2009 Act.

(2) Accordingly, that Chapter applies (with any appropriate modifications) where those powers are conferred by section 36(2) as it applies where those powers are conferred by the 2009 Act.

Supplementary
Repeals and transitional provisions

38. -(1) The following provisions (which relate to marine nature reserves) a re repealed—

(a) in the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985—

(i) Articles 20 and 21;

(ii) in Article 31 “21” (wherever it occurs); and

(iii) Part 2 of Schedule 3;

(b) in the Territorial Sea Act 1987 -

(i) section 3(2)(c); and

(ii) in Schedule 1, paragraph 9.

(2) Any area which, immediately before the day on which this section comes into operation, is designated by an order under Article 20 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 as a marine nature reserve is to be treated, on and after that day, as if it were a marine conservation zone designated by an order under section 11.

(3) The designation having effect by virtue of subsection (2) includes (in accordance with section 13(5)(b)) the area of land designated by the order under Article 20, together with all of the water covering that land.

(4) Any byelaws which, immediately before the day on which this section comes into operation, are in operation under Article 21 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 for the protection of any area designated as a marine nature reserve have effect, on and after that date, as if they were byelaws made under section 24.

Interpretation of this Part

39. In this Part—

“animal” includes any egg, larva, pupa, or other immature stage of an animal;

“emergency byelaws” has the meaning given by section 26;

“interim byelaws” means byelaws made under section 27;

“marine installation” means any artificial island, installation or structure;

“MCZ” means a marine conservation zone designated by an order under section 11;

“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;

“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 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;

“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 .

PART 4

MARINE LICENSING: GENERATING STATIONS

Special procedure for applications relating to generating stations

40. In Chapter 2 of Part 4 of the 2009 Act (marine licensing: exemptions and special cases) after section 79 insert -

“Special procedure for applications relating to certain electricity works (Northern Ireland)

79A. -(1) This section has effect in cases where a person who proposes to carry on an activity must first make both—

(a) an application to the Department of the Environment in Northern Ireland (“the Department”) for a marine licence to carry on that activity (the “marine licence application”), and

(b) a related application for a generating station consent (the “generating station application”).

(2) A “related application for a generating station consent” is an application to DETI for a consent under Article 39 of the Electricity Order (consent for construction, etc. of generating stations) in relation to—

(a) the activity for which the marine licence is required, or

(b) other works to be undertaken in connection with that activity.

(3) In any case where -

(a) both the marine licence application and the generating station application have been made,

(b) DETI decides (with the agreement of the Department) that the two applications are to be considered together, and

(c) DETI has given notice of that decision to the applicant,

the two applications are to be considered together.

(4) Subsection (5) applies in any case where—

(a) one of the applications has been received but not the other,

(b) DETI decides (with the agreement of the Department) that the two applications are to be considered together, and

(c) DETI has given notice of that decision to the applicant.

(5) In any such case—

(a) the application that has been received is not to be considered until the other application has also been received,

(b) the two applications are to be considered together, and

(c) the condition in subsection (3)(b) is to be regarded as satisfied by virtue of subsection (4)(b),

but this is subject to any provision that may be made by virtue of subsection (6)(c) or (d).

(6) The Department may by order do any of the following—

(a) make provision falling within subsection (7) for cases where subsection (3) applies;

(b) make provision falling within subsection (7) for cases where subsection (5) applies;

(c) make provision falling within subsection (7) or (8) for cases where DETI (with the agreement of the Department) comes to the conclusion that the marine licence application is not going to be made;

(d) make provision falling within subsection (7) or (8) for cases where DETI comes to the conclusion that the generating station application is not going to be made.

(7) The provision that may be made by virtue of this subsection is -

(a) provision that such procedural provisions of this Part as are specified in the order are not to apply to the marine licence application;

(b) provision that such procedural provisions of the Electricity Order as are so specified are to apply to that application instead;

(c) provision modifying the provisions of the Electricity Order in their application by virtue of paragraph (b).

(8) The provision that may be made by virtue of this subsection is provision modifying -

(a) such procedural provisions of this Part as are specified in the order, or

(b) such procedural provisions of the Electricity Order as are specified in the order.

(9) In this section -

“DETI” mean the Department of Enterprise, Trade and Investment in Northern Ireland;

“the Electricity Order” means the Electricity (Northern Ireland) Order 1992;

“procedural provisions” means any provisions for or in connection with the procedure for determining an application.”.

PART 5

SUPPLEMENTARY

Regulations and orders

41. -(1) Regulations under this Act are subject to negative resolution.

(2) Except as provided by subsections (3) to (5), orders made by the Department under this Act are subject to negative resolution.

(3) An order to which this subsection applies shall not be made unless a draft of the order has been laid before, and approved by resolution of, the Assembly.

(4) Subsection (3) applies to -

(a) an order under section 32(5);

(b) an order under section 33;

(c) an order under section 44(1) which amends or repeals an Act of Parliament or any Northern Ireland legislation.

(5) Subsection (2) does not apply to -

(a) an order under section 11 (orders made for the purpose of designating MCZs);

(b) an order under section 47(1) (commencement orders).

(6) Orders made under section 11 are not statutory rules for the purposes of the Statutory Rules (Northern Ireland) Order 1979.

(7) Regulations and orders made by the Department under this Act may contain such incidental, consequential, supplementary, transitional and savings provisions as appear to the Department to be necessary or expedient.

Offences: companies, etc.

42. -(1) For the purposes of an offence under this Act, section 20(2) of the Interpretation Act (Northern Ireland) 1954 -

(a) applies with the omission of the words “the liability of whose members is limited”, and

(b) in a case where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

(2) If an offence under this Act is committed by a partnership (whether or not a limited partnership) and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of—

(a) a partner, or

(b) a person purporting to act as a partner,

that person (as well as the partnership) commits the offence.

Disapplication of requirement for consent to certain prosecutions

43. Section 3 of the Territorial Waters Jurisdiction Act 1878 (consents to prosecutions of certain offences committed on the open sea) does not apply to any proceedings for an offence under this Act.

Supplementary, incidental, consequential, transitional provision etc.

44. -(1) The Department may by order make -

(a) such supplementary, incidental or consequential provision,

(b) such transitory, transitional or saving provision,

as it considers appropriate for the general purposes, or any particular purpose, of this Act, or in consequence of, or for giving full effect to, any provision made by this Act.

(2) An order under subsection (1) may amend, repeal, revoke or otherwise modify any statutory provision (including this Act).

(3) Nothing in this Act affects the generality of the power conferred by this section.

Crown application

45. -(1) This Act binds the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland and applies in relation to any Crown land as it applies in relation to any other land.

(2) No contravention by the Crown of any provision of this Act is to make the Crown criminally liable; but the High Court may, on the application of the Department, declare unlawful any act of the Crown which constitutes such a contravention.

(3) Despite subsection (2), the provisions of this Act 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,

(b) belongs to a Northern Ireland department or a department of the government of the United Kingdom or is held in trust for Her Majesty for the purposes of any such department.

Interpretation

46. In this Act—

“the 2009 Act” means the Marine and Coastal Access Act 2009;

“act” includes omission;

“the Department” means the Department of the Environment;

“notice” means notice in writing;

“public authority” means any of the following—

(a) a Minister of the Crown or a department of the government of the United Kingdom;

(b) a Northern Ireland department;

(c) a statutory undertaker within the meaning given by section 250(1) of the Planning Act (Northern Ireland) 2011;

(d) a district council;

(e) any other body established under a statutory provision;

(f) the holder of any office under the Crown or any office established under a statutory provision;

“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954.

Commencement

47. -(1) Part 3 comes into operation on such day or days as the Department may by order appoint.

(2) The other provisions of this Act come into operation on the day after the day on which this Act receives Royal Assent.

(3) An order under subsection (1) may contain such transitional or saving provisions as the Department thinks appropriate.

Short title

48. This Act may be cited as the Marine Act (Northern Ireland) 2012.

SCHEDULES

Section 2.

SCHEDULE 1

MARINE PLANS: PREPARATION AND ADOPTION

Department to notify relevant authorities of decision to prepare plan

1. - (1) Where the Department decides to prepare a marine plan for a marine plan area it must, before beginning to prepare the plan, give notice of its intention to do so to each of the relevant authorities. .

(2) The “relevant authorities” are—

(a) the Secretary of State;

(b) the Scottish Ministers;

(c) any district council whose district adjoins or is adjacent to the marine plan area;

(d) the department of the Government of Ireland with responsibility for marine planning in any area adjoining or adjacent to the marine plan area.

Secretary of State to be kept informed of Department’s intentions as to certain matters

2. - (1) This paragraph applies in any case where the Department gives notice to the Secretary of State under paragraph 1(2)(a).

(2) The notice must state whether the Department proposes to include in the plan provision relating to retained functions.

(3) The notice must state whether the Department proposes so to prepare the marine plan that it will not be in conformity with any marine policy statement which governs marine planning for the marine plan area.

(4) The Department must keep the Secretary of State informed (by giving further notices) of any changes that may from time to time occur in its intentions with respect to any of the matters mentioned in sub-paragraph (2) or (3) .

Marine plans to be compatible with certain other marine plans and development plans

3. - (1) In preparing or amending a marine plan for a marine plan area the Department must take all reasonable steps to secure that the plan is compatible with -

(a) the marine plan for any marine plan area (whether or not within the Northern Ireland inshore region) which is related to that area;

(b) the development plan under Article 4 of the Planning (Northern Ireland) Order 1991 for any area which is related to the marine plan area.

(2) For the purposes of this paragraph, one area is “related to” another if one or more of the following conditions is met—

(a) the one area adjoins or is adjacent to the other;

(b) the one area lies wholly or partly within the other;

(c) the whole or any part of the one area affects or is affected by the whole or any part of the other.

(3) In sub-paragraph (1)(a) “marine plan” and “marine plan area” include a marine plan and a marine plan area within the meaning given by section 51 of the 2009 Act.

Consultation with other relevant Northern Ireland departments

4. The Department must consult the other relevant Northern Ireland departments—

(a) during the preparation of the consultation draft under paragraph 11, and

(b) during the settling of the text of the plan for adoption and publication under paragraph 15.

Statement of public participation

5. - (1) Before preparing a marine plan for any marine plan area, the Department must prepare and publish a statement of public participation (an “SPP”).

(2) An SPP is a statement of the policies settled by the Department for or in connection with the involvement of interested persons in the preparation of the proposed marine plan.

(3) An SPP must identify (by means of a map or otherwise) the area for which the marine plan is being prepared.

(4) If the Department proposes to include provision relating to retained functions, the SPP—

(a) must state that that is the case, and

(b) may be published only with the agreement of the Secretary of State.

(5) An SPP must invite the making of representations in accordance with the SPP as to matters to be included in the proposed marine plan.

(6) The Department must publish the SPP in a way calculated to bring it to the attention of interested persons.

(7) The Department must take all reasonable steps to comply with the SPP.

(8) In this paragraph “interested persons” means—

(a) any persons appearing to the Department to be likely to be interested in, or affected by, policies proposed to be included in the marine plan, and

(b) members of the general public.

Further provision about the content of an SPP

6. - (1) An SPP must include a proposed timetable.

(2) The proposed timetable must include such provision as the Department considers reasonable for each of the following—

(a) the preparation and publication of the consultation draft under paragraph 11 (including the carrying out of the sustainability appraisal under paragraph 10);

(b) the making of representations about the consultation draft;

(c) the consideration of representations under paragraph 12 and the settling of the text of the marine plan for adoption and publication under paragraph 15;

(d) the adoption and publication of the marine plan under that paragraph.

(3) An SPP may include provision for or in connection with the holding of public meetings about the consultation draft.

(4) An SPP must include provision about the making of—

(a) representations, in response to the invitation issued under paragraph 5(5), about the matters to be included in the proposed marine plan, and

(b) representations under paragraph 12 about the consultation draft.

(5) The provision to be made under sub-paragraph (4) includes provision about—

(a) the manner in which representations may be made, and

(b) the time within which representations must be made.

Review and revision of the SPP

7. - (1) The Department must keep the SPP under review.

(2) If at any time the Department considers it necessary or expedient to revise the SPP, it must do so.

(3) The Department must revise the SPP if—

(a) it proposes to include in the marine plan provision relating to retained functions, and

(b) the SPP does not already include a statement that that is the case.

(4) Where the Department revises the SPP, it must publish the SPP as revised.

(5) In any case where the SPP is required to be revised by virtue of sub-paragraph (3), the revised SPP may be published only with the agreement of the Secretary of State.

(6) Any reference in this Schedule to an SPP includes a reference to an SPP as revised.

Advice and assistance

8. - (1) In connection with the preparation of a marine plan, or of any proposals for a marine plan, the Department may seek advice or assistance from any body or person in relation to any matter in which that body or person has particular expertise.

(2) The steps that the Department may take for the purpose of facilitating the involvement of interested persons in—

(a) the development of proposals for inclusion in a proposed marine plan, or

(b) consultation in connection with such proposals,

include the convening of groups of persons for such purposes, and in such manner, as the Department considers appropriate.

(3) In this paragraph “interested persons” has the same meaning as in paragraph 5.

Matters to which the Department is to have regard in preparing a marine plan

9. - (1) The matters to which the Department is to have regard in preparing a marine plan include each of the matters in sub-paragraph (2) . E+W+S+N.I.

(2) Those matters are—

(a) the requirement under section 2(5)(a) for a marine plan to be in conformity with any marine policy statement which governs marine planning for the marine plan area, unless relevant considerations indicate otherwise,

(b) the duties imposed by paragraph 3(1) with respect to securing compatibility with marine plans or development plans for areas which are related to the marine plan area,

(c) the effect which any proposal for inclusion in the plan is likely to have on any area which is related to the marine plan area,

(d) the results of the review required by section 5,

(e) the SPP,

(f) any representations made in response to the invitation issued pursuant to sub-paragraph (5) of paragraph 5,

(g) any advice received under paragraph 8(1),

(h) any plan (not falling within paragraph 3(1)) prepared by a public authority in connection with the management or use of the sea or the coast, or of marine or coastal resources, in the marine plan area or in any adjoining or adjacent area in Northern Ireland or the UK marine area (within the meaning given by section 42 of the 2009 Act),

(i) the powers and duties of the Crown Estate Commissioners under the Crown Estate Act 1961,

and such other matters as the Department considers relevant.

(3) For the purposes of this paragraph, one area is related to another if one or more of the following conditions is met—

(a) the one area adjoins or is adjacent to the other;

(b) the one area lies wholly or partly within the other;

(c) the whole or any part of the one area affects or is affected by the whole or any part of the other.

Sustainability appraisal

10. - (1) The Department must carry out an appraisal of the sustainability of its proposals for inclusion in any marine plan. .

(2) The Department may proceed with those proposals only if it considers that the results of the appraisal indicate that it is appropriate to do so.

(3) The Department must publish a report of the results of the appraisal.

(4) The report is to be published when the Department publishes the consultation draft under paragraph 11.

Preparation and publication of a consultation draft

11. - (1) The Department must publish a draft containing its proposals for inclusion in a marine plan (the “consultation draft”).

(2) If the draft includes provision relating to retained functions, it may be published only with the agreement of the Secretary of State.

(3) The Department must publish the consultation draft in such manner as it considers appropriate.

(4) The Department must also take such steps as it considers appropriate to secure that the proposals contained in the consultation draft are brought to the attention of interested persons.

(5) In this paragraph “interested persons” has the same meaning as in paragraph 5.

Representations about the consultation draft

12. - (1) Any person may make representations about the consultation draft.

(2) Any such representations are to be made in accordance with the SPP.

(3) If any representations are made about the consultation draft, the Department must consider them in the course of settling the text of the marine plan for adoption and publication under paragraph 15.

Independent investigation

13. - (1) Where it has published a consultation draft in accordance with paragraph 11, the Department must consider appointing an independent person to investigate the proposals contained in that draft and to report on them. .

(2) In deciding whether to appoint such a person, the Department must have regard to—

(a) any representations received about the matters to be included in the proposed marine plan, in response to the invitation issued pursuant to paragraph 5(5),

(b) any representations received about the proposals published in the consultation draft,

(c) the extent to which matters raised by representations falling within paragraph (b) have not been resolved,

and such other matters as the Department considers relevant.

(3) Any person so appointed must—

(a) make recommendations, and

(b) give reasons for the recommendations.

(4) The Department must publish the recommendations and the reasons given for them.

Matters to which Department is to have regard in settling text for adoption

14. In settling the text of a marine plan for adoption and publication under paragraph 15 the Department must have regard to—

(a) any recommendations made by any person appointed under paragraph 13,

(b) the reasons given by any such person for any such recommendations,

and any other matters that the Department considers relevant.

Adoption and publication of a marine plan

15. - (1) A marine plan is “adopted” by the Department when the Department has decided to publish the plan (and “adopt” and related expressions are to be read accordingly). E+W+S+N.I.

(2) A marine plan which includes provisions relating to retained functions may be so adopted only with the agreement of the Secretary of State.

(3) The marine plan which the Department decides to publish may be—

(a) the same as the proposals published in the consultation draft, or

(b) those proposals with such modifications as the Department thinks fit.

(4) The Department must publish the marine plan as soon as reasonably practicable after its adoption, together with statements of each of the following—

(a) any modifications that have been made to the proposals published in the consultation draft,

(b) the reasons for those modifications,

(c) if any recommendations made by any independent person appointed under paragraph 13 have not been implemented in the marine plan, the reasons why those recommendations have not been implemented.

Section 35.

SCHEDULE 2

FURTHER PROVISION ABOUT FIXED MONETARY PENALTIES UNDER SECTION 33

Fixed monetary penalties: other sanctions

1. - (1) An order under section 33 must secure that, in a case where a notice of intent referred to in section 34(2)(a) is served on a person—

(a) no criminal proceedings for the offence to which the notice relates may be instituted against the person in respect of the act to which the notice relates before the end of the period in which the person may discharge liability to the fixed monetary penalty pursuant to section 34(2)(b), and

(b) if the person so discharges liability, the person may not at any time be convicted of the offence to which the notice relates in relation to that act.

(2) An order under section 33 must also secure that, in a case where a fixed monetary penalty is imposed on a person, that person may not at any time be convicted of the offence in relation to which the penalty is imposed in respect of the act giving rise to the penalty.

Monetary penalties

2. - (1) An order under section 33 may include provision -

(a) for early payment discounts;

(b) for the payment of interest or other financial penalties for late payment of the fixed monetary penalty, such interest or other financial penalties not in total to exceed the amount of that penalty;

(c) for enforcement of the penalty.

(2) Provision under sub-paragraph (1)(c) may include—

(a) provision for the Department to recover the fixed monetary penalty, and any interest or other financial penalty for late payment, as a civil debt;

(b) provision for the fixed monetary penalty, and any interest or other financial penalty for late payment, to be recoverable, on the order of a court, as if payable under a court order.

Appeals

3. - (1) An order under section 33 may not provide for the making of an appeal other than to a tribunal created under a statutory provision.

(2) In sub-paragraph (1) “tribunal” does not include an ordinary court of law.

(3) An order under section 33 which makes provision for an appeal in relation to the imposition of any requirement or service of any notice may include—

(a) provision suspending the requirement or notice pending determination of the appeal;

(b) provision as to the powers of the tribunal to which the appeal is made;

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

(4) The provision referred to in sub-paragraph (3)(b) includes provision conferring on the tribunal to which the appeal is made power—

(a) to withdraw the requirement or notice;

(b) to confirm the requirement or notice;

(c) to take such steps as the Department could take in relation to the act giving rise to the requirement or notice;

(d) to remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the Department;

(e) to award costs.

Consultation

4. - (1) Before making an order under section 33, the Department must consult the following—

(a) such organisations as appear to the Department to be representative of persons substantially affected by the proposals, and

(b) such other persons as the Department considers appropriate.

(2) If, as a result of any consultation required by sub-paragraph (1), it appears to the Department that it is appropriate substantially to change the whole or any part of the proposals, the Department must undertake such further consultation with respect to the changes as it considers appropriate.

(3) If, before the day on which this Schedule comes into operation, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of this paragraph, those requirements may to that extent be taken to have been satisfied.

Guidance as to use of fixed monetary penalties

5. - (1) An order under section 33 must secure the results in sub-paragraph (2).

(2) Those results are that—

(a) the Department must publish guidance about its use of the fixed monetary penalty,

(b) the guidance must contain the relevant information,

(c) the Department must revise the guidance where appropriate,

(d) the Department must consult such persons as the order may specify before publishing any guidance or revised guidance, and

(e) the Department must have regard to the guidance or revised guidance in exercising its functions.

(3) The relevant information referred to in sub-paragraph (2)(b) is information as to—

(a) the circumstances in which the fixed monetary penalty is likely to be imposed,

(b) the circumstances in which it may not be imposed,

(c) the amount of the penalty,

(d) how liability for the penalty may be discharged and the effect of discharge, and

(e) rights to make representations and objections and rights of appeal.

Guidance as to enforcement of offences

6. - (1) Where an order under section 33 confers powers to impose a fixed monetary penalty in relation to an offence, the Department must prepare and publish guidance about how the offence is enforced.

(2) The guidance must include guidance as to—

(a) the sanctions (including criminal sanctions) to which a person who commits the offence may be liable,

(b) the action which the Department may take to enforce the offence, whether by virtue of section 33 or otherwise, and

(c) the circumstances in which the Department is likely to take any such action.

(3) The Department may from time to time revise guidance published by it under this paragraph and publish the revised guidance.

(4) The Department must consult such persons as it considers appropriate before publishing any guidance or revised guidance under this paragraph.

Publication of enforcement action

7. - (1) An order under section 33 must secure the result in sub-paragraph (2) unless the Department considers that it would be inappropriate to do so.

(2) That result is that the Department must from time to time publish reports specifying—

(a) the cases in which a fixed monetary penalty has been imposed, and

(b) the cases in which liability to the penalty has been discharged pursuant to section 34(2)(b).

(3) In sub-paragraph (2)(a), the reference to cases in which a fixed monetary penalty has been imposed does not include cases where a penalty has been imposed but overturned on appeal.

Disclosure of information

8. - (1) Information held by or on behalf of a person mentioned in sub-paragraph (2) may be disclosed to the Department where—

(a) the person has an enforcement function in relation to an offence, and

(b) the information is disclosed for the purpose of the exercise by the Department of any powers conferred on it under section 33 in relation to that offence.

(2) The persons are—

(a) the Public Prosecution Service for Northern Ireland, or

(b) a member of the Police Service of Northern Ireland.

(3) It is immaterial for the purposes of sub-paragraph (1) whether the information was obtained before or after the coming into operation of this paragraph.

(4) A disclosure under this paragraph is not to be taken to breach any restriction on the disclosure of information (however imposed).

(5) Nothing in this paragraph authorises the making of a disclosure in contravention of—

(a) the Data Protection Act 1998, or

(b) Part 1 of the Regulation of Investigatory Powers Act 2000.

(6) This paragraph does not affect a power to disclose which exists apart from this paragraph.

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