Office of Public Sector Information
PART 2 continued CHAPTER 2 continued
(8) The Secretary of State must have regard to objections made otherwise than by the authority in question in determining whether to give a direction under sub-paragraph (7) and in determining (where he gives one) what direction to give.
(9) The Secretary of State may direct that separate inquiries may be held in relation to any or each of the following—
(a) so much of the application as relates to land within the area of a particular relevant planning authority;
(b) so much of the application as relates to anywhere that is not within the area of a relevant planning authority.
(10) For the purposes of sub-paragraph (7) a planning authority that has made an objection is to be treated as not having done so if the Secretary of State proposes to accede to the application subject to such modifications or conditions as meet that objection.”
(3) In section 36(9) of that Act (definition of extension), after “land” insert “or area of waters”.
(4) The functions conferred by virtue of this section on the Secretary of State are not to be exercisable by the Scottish Ministers, except in pursuance of an Order in Council made after the passing of this Act under section 63 of the Scotland Act 1998 (c. 46).
(1) In section 29 of the 1989 Act (regulations relating to supply and safety), after subsection (1) insert—
“(1A) Regulations under this section may include provision for securing the purposes mentioned in subsection (1) in relation to the territorial sea adjacent to Great Britain or any Renewable Energy Zone.”
(2) In section 30 of that Act (electrical inspectors), after subsection (3) insert—
“(3A) The regulations that may be made under this section include regulations—
(a) imposing duties on electrical inspectors in relation to anything in the territorial sea adjacent to Great Britain or a Renewable Energy Zone; or
(b) making any other provision authorised by this section in relation to activities carried on there.”
(1) This section applies where—
(a) there is a proposal to construct a renewable energy installation in waters subject to regulation under this section, or to extend or to decommission a renewable energy installation situated in such waters;
(b) there is a proposal to operate a renewable energy installation on completion of its construction in such waters, or of any extension of it in such waters; or
(c) a renewable energy installation is being constructed, extended, operated or decommissioned in such waters.
(2) If the Secretary of State considers it appropriate to do so for the purpose of securing the safety of—
(a) the renewable energy installation or its construction, extension or decommissioning,
(b) other installations in the vicinity of the installation or the place where it is to be constructed or extended,
(c) individuals in or on the installation or other installations in that vicinity, or
(d) vessels in that vicinity or individuals on such vessels,
he may issue a notice declaring that such areas as are specified or described in the notice are to be safety zones for the purposes of this Chapter.
(3) The power of the Secretary of State to issue a notice under this section shall be exercisable by him either—
(a) on an application made to him for the purpose by any person; or
(b) where no such application is made, on his own initiative.
(4) Before issuing a notice under this section which relates, wholly or partly, to—
(a) an area of Scottish waters, or
(b) an area of waters in a Scottish part of a Renewable Energy Zone,
the Secretary of State must consult the Scottish Ministers.
(5) An area may be declared to be a safety zone only if it is an area of waters around or adjacent to a place where a renewable energy installation is to be, or is being, constructed, extended, operated or decommissioned; but a safety zone may extend to waters outside the waters subject to regulation under this section.
(6) A notice under this section—
(a) must identify the renewable energy installation, or proposed renewable energy installation, by reference to which it is issued;
(b) must specify the date on which it is to come into force, or the means by which that date is to be determined;
(c) may contain provision by virtue of which the area of a safety zone varies from time to time by reference to factors specified in, or determinations made in accordance with, the provisions of the notice;
(d) may contain provision imposing prohibitions on the carrying on in a safety zone of activities specified in, or determined in accordance with, the provisions of the notice, or for the imposition of such prohibitions;
(e) may contain provision granting permission for vessels to enter or remain in a safety zone or for persons to carry on prohibited activities, or for the grant of such permissions;
(f) may confer discretions, with respect to the making of determinations for the purposes of such a notice, on such persons as may be specified or described in the notice;
(g) may modify or revoke a previous notice; and
(h) may make different provision in relation to different cases.
(7) Where a notice is issued under this section or a determination is made for the purposes of such a notice, the Secretary of State must either—
(a) himself publish the notice or determination in such manner as he considers appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it; or
(b) secure that it is published in that manner—
(i) by the applicant for the notice; or
(ii) in the case of a determination made by a person other than the Secretary of State, by the applicant for the notice or by the person who made the determination.
(8) References in this section to a determination for the purposes of a notice include references to a determination made for those purposes in accordance with the notice, or with regulations under section 96—
(a) to impose a prohibition;
(b) to grant a permission; or
(c) to impose conditions in relation to a permission.
(9) Schedule 16 (which makes provision about the procedure for the declaration of safety zones) has effect.
(10) The waters subject to regulation under this section are—
(a) waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and
(b) waters within a Renewable Energy Zone.
(1) A vessel is not to enter or remain in a safety zone except where permission for it to do so is granted—
(a) by or in accordance with provision contained in a notice under section 95; or
(b) by or in accordance with provision contained in regulations made by the Secretary of State.
(2) A person must not carry on an activity wholly or partly in a safety zone if his doing so is prohibited by or in accordance with provision contained in a notice under section 95.
(3) Subsection (2) does not apply to the extent that carrying on the activity is permitted—
(a) by or in accordance with provision contained in such a notice; or
(b) by or in accordance with provision contained in regulations made by the Secretary of State.
(4) The provision that may be made with respect to permissions for the purposes of this section includes—
(a) provision for the permissions to apply in relation only to such times and such periods as may be specified or described in that provision; and
(b) provision for the permissions to apply only to such vessels, such persons and such purposes as may be specified or described in that provision.
(5) The provision that may be made with respect to a permission for the purposes of this section includes provision imposing conditions in relation to a permission.
(6) The conditions may include—
(a) conditions imposing obligations in relation to a vessel, or individuals on it, that must be satisfied while the vessel is in the safety zone; and
(b) conditions imposing obligations as to the manner in which any activity to which the permission relates is to be carried on.
(7) Regulations under this section may confer discretions, with respect to the granting or imposition in accordance with the regulations of permissions or conditions, on such persons as may be specified or described in the regulations.
(8) Regulations under this section are subject to the negative resolution procedure.
(1) Where a vessel enters or remains in a safety zone in contravention of section 96(1), the vessel’s owner and her master are each guilty of an offence.
(2) Where—
(a) a vessel enters or remains in a safety zone with a permission granted for the purposes of section 96, and
(b) there is a contravention of a condition of that permission in relation to the vessel or individuals on the vessel,
the vessel’s owner and her master are each guilty of an offence.
(3) A person who carries on an activity wholly or partly in a safety zone in contravention of section 96(2) is guilty of an offence.
(4) Where—
(a) a person carries on an activity wholly or partly in a safety zone with a permission granted for the purposes of section 96, and
(b) there is a contravention of a condition of that permission in relation to the carrying on of that activity,
that person is guilty of an offence.
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
(6) In proceedings against a person as the owner of a vessel for an offence under subsection (1) or (2), it is a defence for him to show that the existence of the safety zone—
(a) was not known to the master of the vessel in question at the time of the offence; and
(b) would not have become known to the master had he made reasonable inquiries before that time.
(7) In any other proceedings against a person for an offence under this section, it is a defence for that person to show that the existence of the safety zone—
(a) was not known to him at the time of the offence; and
(b) would not have become known to him had he made reasonable inquiries before that time.
(8) It is also a defence in proceedings against a person for an offence under this section for that person to show that he took all reasonable steps to prevent the contravention in question.
(1) Where the commission of an offence under section 97 is due—
(a) in the case of an offence under subsection (1) or (2) of that section, to an act or omission of a person other than the owner or master of the vessel in question, or
(b) in the case of an offence under subsection (3) or (4) of that section, to an act or omission of a person other than the person carrying on the activity in question,
that person is also guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.
(2) Where an offence under section 97 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person who was purporting to act in any such capacity,
he (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.
(3) Where an offence under section 97—
(a) is committed by a Scottish firm, and
(b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,
he (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.
(4) Where an offence under section 97 is committed outside of the United Kingdom, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
(5) Section 3 of the Territorial Waters Jurisdiction Act 1878 (c. 73) (consents to prosecution of offences committed on the open sea by persons who are not British citizens) does not apply to proceedings for an offence under section 97.
(6) In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
(1) After section 36 of the 1989 Act insert—
(1) Where a consent is granted by the Secretary of State or the Scottish Ministers in relation to—
(a) the construction or operation of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters, or
(b) an extension of a generating station that is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters or an extension of such an installation,
he or (as the case may be) they may, at the same time, make a declaration under this section as respects rights of navigation so far as they pass through some or all of those places.
(2) The Secretary of State or the Scottish Ministers may make such a declaration only if the applicant for the consent made an application for such a declaration when making his application for the consent.
(3) A declaration under this section is one declaring that the rights of navigation specified or described in it—
(a) are extinguished;
(b) are suspended for the period that is specified in the declaration;
(c) are suspended until such time as may be determined in accordance with provision contained in the declaration; or
(d) are to be exercisable subject to such restrictions or conditions, or both, as are set out in the declaration.
(4) A declaration under this section—
(a) has effect, in relation to the rights specified or described in it, from the time at which it comes into force; and
(b) continues in force for such period as may be specified in the declaration or as may be determined in accordance with provision contained in it.
(5) A declaration under this section—
(a) must identify the renewable energy installations, or proposed renewable energy installations, by reference to which it is made;
(b) must specify the date on which it is to come into force, or the means by which that date is to be determined;
(c) may modify or revoke a previous such declaration, or a declaration under section 100 of the Energy Act 2004; and
(d) may make different provision in relation to different means of exercising a right of navigation.
(6) Where a declaration is made under this section by the Secretary of State or the Scottish Ministers, or a determination is made by him or them for the purposes of a provision contained in such a declaration, he or (as the case may be) they must either—
(a) publish the declaration or determination in such manner as appears to him or them to be appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it; or
(b) secure that it is published in that manner by the applicant for the declaration.
(7) In this section—
“consent” means a consent under section 36 above;
“extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;
“relevant waters” means waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea.
(1) Neither the Secretary of State nor the Scottish Ministers may grant a consent in relation to any particular offshore generating activities if he considers, or (as the case may be) they consider, that interference with the use of recognised sea lanes essential to international navigation—
(a) is likely to be caused by the carrying on of those activities; or
(b) is likely to result from their having been carried on.
(2) It shall be the duty both of the Secretary of State and of the Scottish Ministers, in determining—
(a) whether to give a consent for any particular offshore generating activities, and
(b) what conditions to include in such a consent,
to have regard to the extent and nature of any obstruction of or danger to navigation which (without amounting to interference with the use of such sea lanes) is likely to be caused by the carrying on of the activities, or is likely to result from their having been carried on.
(3) In determining for the purposes of this section what interference, obstruction or danger is likely and its extent and nature, the Secretary of State or (as the case may be) the Scottish Ministers must have regard to the likely overall effect (both while being carried on and subsequently) of—
(a) the activities in question; and
(b) such other offshore generating activities as are either already the subject of consents or are activities in respect of which it appears likely that consents will be granted.
(4) For the purposes of this section the effects of offshore generating activities include—
(a) how, in relation to those activities, the Secretary of State and the Scottish Ministers have exercised or will exercise their powers under section 36A above and section 100 of the Energy Act 2004 (extinguishment of public rights of navigation); and
(b) how, in relation to those activities, the Secretary of State has exercised or will exercise his powers under sections 95 and 96 and Chapter 3 of Part 2 of that Act (safety zones and decommissioning).
(5) If the person who has granted a consent in relation to any offshore generating activities thinks it appropriate to do so in the interests of the safety of navigation, he may at any time vary conditions of the consent so as to modify in relation to any of the following matters the obligations imposed by those conditions—
(a) the provision of aids to navigation (including, in particular, lights and signals);
(b) the stationing of guard ships in the vicinity of the place where the activities are being or are to be carried on; or
(c) the taking of other measures for the purposes of, or in connection with, the control of the movement of vessels in that vicinity.
(6) A modification in exercise of the power under subsection (5) must be set out in a notice given by the person who granted the consent to the person whose obligations are modified.
(7) In this section—
“consent” means a consent under section 36 above;
“offshore generating activities” means—
the construction or operation of a generating station that is to comprise or comprises (in whole or in part) renewable energy installations; or
an extension of a generating station that is to comprise (in whole or in part) renewable energy installations or an extension of such an installation;
“the use of recognised sea lanes essential to international navigation” means—
anything that constitutes the use of such a sea lane for the purposes of Article 60(7) of the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941); or
any use of waters in the territorial sea adjacent to Great Britain that would fall within paragraph (a) if the waters were in a Renewable Energy Zone.
(8) In subsection (7) “extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.”
(2) In paragraph 8 of Schedule 8 to that Act (supplementary provisions relating to applications under section 36 of that Act), after sub-paragraph (2) insert—
“(3) Where an application for a declaration under section 36A of this Act is made with an application for a consent under section 36 of this Act, the application for the declaration shall be treated for the purposes of this Schedule as part of the application for the consent.”
(3) In section 3D of that Act (principal objective and general duties not to apply to Secretary of State’s functions under section 36 or 37), for “section 36 or 37” substitute “sections 36 to 37”.
(4) In subsection (1) of section 35 of the Coast Protection Act 1949 (c. 74) (operations not requiring consent under section 34), after paragraph (g) insert—
“(ga) subject to subsection (3) of this section, any operations comprised in offshore generating activities carried out in accordance with a consent under section 36 of the Electricity Act 1989 granted after the commencement of section 99 of the Energy Act 2004;”.
(5) After subsection (2) of that section insert—
“(3) Operations in or as regards Scotland fall within paragraph (ga) of that subsection only if and to the extent that the Scottish Ministers by order made by statutory instrument so provide.
(4) A statutory instrument containing an order under subsection (3) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the Scottish Parliament.
(5) In that paragraph “offshore generating activities” has the same meaning as in section 36B of the Electricity Act 1989.”
(1) This section applies where a consent falling within subsection (2) has been granted by the Secretary of State or the Scottish Ministers (“the consenting authority”) under section 36 of the 1989 Act (consent required for construction etc. of generating stations) before the commencement of section 99.
(2) A consent falls within this subsection if it relates to—
(a) the construction or operation of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated in relevant waters; or
(b) an extension of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations so situated or an extension of such an installation.
(3) On an application made by the generator, the consenting authority may make a declaration under this section as respects rights of navigation—
(a) so far as they pass through the places where the renewable energy installations are situated or are to be situated; or
(b) so far as they pass through some of those places.
(4) A declaration under this section is one declaring that the rights of navigation specified or described in it—
(a) are extinguished;
(b) are suspended for the period that is specified in the declaration;
(c) are suspended until such time as may be determined in accordance with provision contained in the declaration; or
(d) are to be exercisable subject to such restrictions or conditions, or both, as are set out in the declaration.
(5) Subsections (4) to (6) of section 36A of the 1989 Act (declarations extinguishing etc. rights of navigation upon grant of consent under section 36 of that Act) shall apply in relation to declarations under this section as they apply in relation to declarations under that section, but with the omission of subsection (5)(c).
(6) Before making a declaration under this section, the consenting authority must—
(a) publish details of the generator’s application in such manner as that authority considers appropriate;
(b) give notice of that application to such persons as that authority considers appropriate;
(c) consult the persons to whom notice has been given;
(d) make such arrangements as that authority considers appropriate for a copy of the application to be made available for inspection by members of the public; and
(e) give such opportunities to such persons as that authority considers appropriate to make representations to the authority about the application.
(7) The consenting authority may satisfy the requirements of paragraphs (a) to (d) of subsection (6) by securing that the things that it is required to do under those paragraphs are done on its behalf by the generator.
(8) In this section—
“generator”, in relation to a consent under section 36 of the 1989 Act, means the person who is constructing or operating the station in question, or making the extension in question, or who is proposing to do so;
“relevant waters” has the same meaning as in section 36A of the 1989 Act.
(1) Schedule 13 to the Civil Aviation Act 1982 (c. 16) (subordinate instruments) is amended as follows.
(2) In the Table in Part 2 (provisions applying to certain powers), in the entry for section 60, in column 4 (applicable paragraphs of Part 3 of the Schedule), for “and 6” substitute “, 6 and 7”.
(3) In paragraph 6 of Part 3 (extra-territorial provisions), in sub-paragraph (4) for “sub-paragraph (5)” substitute “sub-paragraphs (5) and (7)”.
(4) After sub-paragraph (6) of that paragraph insert—
“(7) So far as relates to a provision of an Order in Council or regulation concerning aircraft on or in the neighbourhood of a renewable energy installation, this paragraph—
(a) shall apply to all aircraft, and not only to aircraft registered in the United Kingdom; and
(b) shall apply to the doing of anything in relation to an aircraft by any person, irrespective of nationality, or (in the case of a body corporate) of the law under which it was incorporated.
(8) For the purposes of sub-paragraphs (5) and (7) the neighbourhood of an installation includes anywhere within 500 metres of that installation.
(9) In this paragraph “renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.”
(5) After that paragraph insert—
“7 (1) Without prejudice to paragraph 6 above, an Air Navigation Order may make provision in relation to renewable energy installations located within a Renewable Energy Zone as if those installations were located in a part of the United Kingdom.
(2) Such provision may apply to any person irrespective of nationality or (in the case of a body corporate) of the law under which it was incorporated.
(3) In this paragraph “renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004.”
(1) The 1989 Act is amended as follows.
(2) In section 61(2) (concurrent proceedings for compulsory purchase and in respect of consents under section 36 of that Act), at the end insert “and with any related proceedings under Schedule 16 to the Energy Act 2004”.
(3) In section 62(3) (power to combine inquiries)—
(a) in paragraph (a), after “this Part” insert “or Schedule 16 to the Energy Act 2004”; and
(b) in paragraph (b), after “this Part” insert “, that Schedule”.
(4) In section 64(1) (interpretation of Part 1)—
(a) after the definition of “authorised supplier” insert—
““construct” and “construction”, in relation to so much of a generating station as comprises or is to comprise renewable energy installations, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;”;
(b) after the definitions of “relevant condition” and “relevant requirement” insert—
““renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004;”.
(5) After section 108 insert—
(1) Where by virtue of this Act an act or omission taking place outside Great Britain constitutes an offence, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in Great Britain.
(2) Provision made by or under this Act in relation to places outside Great Britain—
(a) so far as it applies to individuals, applies to them whether or not they are British citizens; and
(b) so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of a part of the United Kingdom.”
Energy Act 2004