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Marine (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-03-10

Last updated 2026-02-12

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(d) the decision was unreasonable for any other reason.

Further provision about civil sanctions

50

Schedule 2 makes further provision about civil sanctions under this Part.

Delegation

Delegation of functions relating to marine licensing

51

(1) The Scottish Ministers may make an order which—

(a) designates any of the delegable marine licensing functions which would (apart from any order under this section) be exercisable by the Scottish Ministers, and

(b) provides that the functions so designated (the “designated functions”), instead of being so exercisable, are to be exercisable by such delegate, acting on behalf of the Scottish Ministers as is designated in the order.

(2) The delegate so designated may be either—

(a) a public authority, or

(b) a group of persons comprising (either or both)—

(i) persons nominated by such public authorities with an interest in the Scottish marine area as the Scottish Ministers consider appropriate,

(ii) persons nominated by the Scottish Ministers.

(3) The Scottish Ministers may make an order under this section—

(a) where the proposed delegate is a public authority, only with the consent of the authority,

(b) where the proposed delegate is a group of persons referred to in paragraph (b) of subsection (2), only with the consent of any public authority responsible for nominating under sub-paragraph (i) of that paragraph.

(4) The delegate—

(a) must comply with the order, and

(b) is to be taken to have all the powers necessary to do so.

(5) In this section “delegable marine licensing functions” means functions of the Scottish Ministers under this Part other than excepted functions.

(6) The excepted functions are functions under—

(a) section 21(3) (altering the list of licensable marine activities),

(b) section 25(1)(b) (making regulations regarding the fee for an application),

(d) section 27(7) (making regulations as to the procedure for applications),

(e) section 32(1) and (5) (making orders specifying activities which do not require a marine licence and consulting in relation to such orders),

(f) section 33(1) (making regulations regarding activities falling below specified levels of environmental impact),

(g) section 35(3) (making orders providing for special procedures for certain applications),

(h) section 38(1) (making regulations regarding appeals against licensing decisions),

(i) sections 46(1) and 48(1) (making orders conferring powers to impose civil sanctions),

(j) this section and section 53,

(k) section 54(3) (making regulations regarding a register of licensing information),

(l) section 61 (making regulations regarding appeals against notices issued under sections 30, 43, 44, 55 or 57).

Orders under section 51: supplementary provisions

52

(1) For so long as an order made under section 51 remains in force, the designated functions are exercisable by the delegate acting on behalf of the Scottish Ministers (and are not exercisable by the Scottish Ministers).

(2) Subsection (1) is subject to any provision to the contrary which is included in the order.

(3) An order under section 51 may include—

(a) such terms or conditions,

(b) such obligations or requirements,

as the Scottish Ministers may determine.

(4) The provision that may be made under subsection (3) includes, in particular, provision (where appropriate) as to—

(a) the manner in which the delegate is to exercise any of the functions,

(b) the form and manner in which licence applications must be made to the delegate,

(c) the persons to whom notice of an application should be published under section 26, and the circumstances in which such notice should not be published,

(d) matters (in addition to those set out in section 27) to which the delegate must have regard in determining applications for licences,

(e) the circumstances in which the delegate must exercise the power to consult under section 27(4), and the persons who must or may be consulted,

(f) the form and content of any licence granted,

(g) appeals from any decision of the delegate (whether to the Scottish Ministers, a court, tribunal or (as the case may be) person to which, or whom, the appeal is made),

(h) any other provision that may be made by virtue of section 27(7).

(5) An order under section 51 may make different provision for different cases or different delegates.

(6) Where an order has been made under section 51 that a delegate is to grant licences—

(a) the delegate may (in accordance with subsections (1) to (3) and (8) of section 30) vary, suspend, revoke or transfer a licence granted before making the order, and

(b) any reference in those subsections to a licence granted by the Scottish Ministers includes a reference to a licence granted by the delegate.

(7) The Scottish Ministers may make grants to a delegate for the exercise of the designated functions.

Directions to delegates as regards the performance of the marine licensing designated functions

53

(1) This section applies where any functions are exercisable by a delegate by virtue of an order made under section 51 by the Scottish Ministers.

(2) The Scottish Ministers may from time to time give directions to the delegate with respect to the performance of the functions.

(3) Before giving any direction under this section, the Scottish Ministers must consult the delegate.

(4) A delegate to whom directions are given under this section must comply with the directions.

(5) The Scottish Ministers must publish any direction given under this section in such manner as they consider is most likely to bring the direction to the attention of persons likely to be affected by it.

Register of licensing information

54

(1) The Scottish Ministers must maintain a register of marine licensing information.

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

(a) applications for licences,

(b) licences granted,

(d) revocations of licences,

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

(f) convictions for any offence under this Part,

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

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

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

(3) The register must be maintained in accordance with regulations made by the Scottish Ministers.

(4) The Scottish Ministers must make arrangements—

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

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

(5) Information must not appear in the register if the Scottish Ministers determine that its disclosure in the register would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest.

(6) The Scottish Ministers must review a determination to exclude information under subsection (5) every 4 years.

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

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

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

Stop notices and emergency safety notices

Notice to stop activity causing serious harm etc.

55

(1) If it appears to the Scottish Ministers that subsection (3) is satisfied in relation to a person carrying on an activity, they may issue a stop notice to the person.

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

(3) This subsection is satisfied if—

(a) a person is carrying on, or is likely to carry on, a licensable marine activity (whether or not in accordance with a marine licence),

(b) the carrying on of the activity to be specified in the notice—

(i) is causing or is likely to cause any of the effects in subsection (4), or

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

(4) The effects are—

(a) serious harm to the environment,

(b) serious harm to human health,

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

(a) must state the Scottish Ministers' grounds for believing that subsection (3) is satisfied,

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

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

(6) Except in a case falling within subsection (8), a stop notice—

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

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

(7) A stop notice may be renewed more than once under subsection (6)(b), but not so that it has effect for a total period exceeding 35 days.

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

Further provision as to stop notices

56

(1) A stop notice issued by the Scottish Ministers—

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

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

(2) The Scottish Ministers may by a further notice—

(a) revoke a stop notice,

(b) vary a stop notice so as to substitute a later date for the date specified in accordance with section 55(5)(b).

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

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

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

(b) on conviction on indictment, to a fine or to imprisonment for a period not exceeding 2 years, or both.

Emergency safety notices

57

(1) This section applies if it appears to the Scottish Ministers that serious interference with legitimate uses of the sea is occurring, or is likely to occur, as a result of—

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

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

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

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

(4) The matters are—

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

(b) the stationing of guard ships.

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

(a) must state the Scottish Ministers' grounds for believing that serious interference with legitimate uses of the sea is occurring, or is likely to occur,

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

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

Further provision as to emergency safety notices

58

(1) An emergency safety notice issued by the Scottish Ministers must be served on each of the following—

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

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

(2) The Scottish Ministers may by a further notice—

(a) revoke an emergency safety notice,

(b) vary an emergency safety notice so as to substitute a later date for the date specified in accordance with section 57(5)(b).

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

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

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

(b) on conviction on indictment, to a fine or to imprisonment for a period not exceeding 2 years, or to both.

Other powers

Power to take remedial action

59

(1) If it appears to the Scottish Ministers that a licensable marine activity has been carried on otherwise than under a marine licence and in accordance with its conditions, they may carry out any works that appear to them to be necessary or expedient for any one or more of the following purposes—

(a) protecting the environment,

(b) protecting human health,

(d) preventing or minimising, or remedying or mitigating the effects of, any harm or interference falling within subsection (2),

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

(2) The harm or interference mentioned in subsection (1)(d) and (e) is any of the following which has been, is being, or is likely to be, caused by the carrying on of the licensable marine activity—

(a) harm to the environment,

(b) harm to human health,

Power to test and charge for testing certain substances

60

(1) The Scottish Ministers may, at the request of any person, conduct tests for the purpose of ascertaining the probable effect on the marine environment of using any substance for treating fouling matter—

(a) on or under the surface of the sea or of the seabed, or

(b) on any surface of a vessel, vehicle, aircraft or marine structure in, on or over the sea or on the seabed.

(2) In this section “fouling matter” means—

(a) oil or chemicals, or

(b) algae or other living or dead organisms.

(3) The Scottish Ministers may recover any expenses reasonably incurred in conducting any tests under subsection (1) from any person at whose request the tests were conducted.

Appeals against notices under this Part

Appeals against notices

61

(1) The Scottish Ministers must by regulations make provision for any person to whom a notice listed in subsection (2) is issued, to appeal to the sheriff against that notice.

(2) The notices are those issued under—

(a) section 30 (notice varying, suspending or revoking marine licence for breach of conditions),

(b) section 43 (compliance notice),

(d) section 55 (stop notice), or

(e) section 57 (emergency safety notice).

(3) The regulations must come into force on the day on which this Part comes into force.

(4) The regulations may include provision—

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

(b) suspending the notice pending determination of the appeal,

Offences: supplementary provision

General defence of due diligence

62

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

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

(a) if the accused—

(i) acted under an employer's instructions,

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

(iii) took all such steps as reasonably could be taken to ensure that no offence would be committed, or

(b) if the accused—

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

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

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

(3) Subsection (2) does not affect the generality of subsection (1).

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

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

(b) reliance on information supplied by another person,

the accused is not, without leave of the court, entitled to rely on the defence unless the requirement in subsection (5) is satisfied.

(5) The requirement is that—

(a) at least 7 clear days before the hearing, and

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

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

Power by order to provide marine fish farming is not “development”

63

(1) The Town and Country Planning (Scotland) Act 1997 (c.8) is amended as follows.

(2) In section 26(1) (meaning of “development”), after “section” where it first occurs insert “ and to section 26AB ”.

(3) After section 26AA, insert—

(26AB) (1) The Scottish Ministers may by order provide that— (a) section 26(6) does not apply as respects the placing or assembly of equipment for the purpose of fish farming in waters identified in the order (the “relevant waters”), (b) section 26(6AA) does not apply as respects any material change in the use of equipment so placed or assembled for that purpose, and (c) the operation of a marine fish farm in the relevant waters in the circumstances specified in section 26AA is not “development” for the purposes of this Act. (2) An order under subsection (1) may be made only with the agreement of the planning authority (or planning authorities) for the relevant waters; and in this subsection the “planning authority” means the planning authority specified in an order under section 26(6D).

(4) In section 275 (regulations and orders)—

(a) in subsection (4), after “26(2)(f), (6A) and (6C),” insert “ 26AB(1), ”,

(b) in subsection (5A), after “26(6A) or (6C)” insert “ or 26AB(1) ”.

Interpretation of Part 4

64

(1) In this Part—

“marine licence” means a licence granted under this Part,

“vessel” includes—hovercraft,any other craft capable of travelling on, in or under water, whether or not self propelled.

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

Part 5 — Marine protection and enhancement: the Scottish marine protection area

The Scottish marine protection area

65

(1) For the purposes of this Act, the “Scottish marine protection area” means the Scottish marine area, excluding any waters upstream of the fresh-water limit of estuarial waters.

(2) In this Part, “estuarial waters” means any waters within the limits of transitional waters, within the meaning of Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (as amended from time to time).

“Sea” for the purposes of this Part

66

For the purposes of this Part, “sea” has the meaning given in section 2, except that it does not include any waters upstream of the fresh-water limit of estuarial waters.

Designation of marine protected areas

Marine protected areas

67

(1) The Scottish Ministers may by order (a “designation order”) designate any area of the Scottish marine protection area as—

(a) a nature conservation marine protected area (a “Nature Conservation MPA”),

(b) a demonstration and research marine protected area (a “Demonstration and Research MPA”),

(2) The reference in subsection (1) to any area of the Scottish marine protection area includes a reference to any island in that area of sea, whether or not any part of the island lies above mean high water spring tide. (See sections 68 to 73 for additional requirements relating to designating, and additional areas that may be included in, these marine protected areas).

Nature Conservation MPAs

Nature Conservation MPAs: additional requirements relating to designation

68

(1) An area may be designated by a designation order as a Nature Conservation MPA if the Scottish Ministers consider it desirable to do so for any of the following purposes—

(a) conserving marine flora or fauna,

(b) conserving—

(i) marine habitats or types of such habitat,

(ii) features of geological or geomorphological interest.

(2) The Scottish Ministers must—

(a) prepare and publish guidance setting out scientific criteria to inform consideration of whether an area should be designated a Nature Conservation MPA, and

(b) have regard to such guidance in exercising their functions under section 67.

(3) The designation order must state—

(a) the protected feature or features in,

(b) the conservation objectives for,

the Nature Conservation MPA.

(4) Before designating an area as a Nature Conservation MPA, the Scottish Ministers must have regard to the extent to which the designation of the area would contribute towards the development of a network of conservation sites (namely a network referred to in section 79(2)).

(5) For the purposes of subsection (1)(a), conserving marine flora or fauna includes (in particular) conserving any species that is rare or threatened because of—

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

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

(6) For the purposes of subsection (1)(a) and (b)(i), conserving marine flora or fauna, or (as the case may be) marine habitat or types of such habitat includes conserving the diversity of such flora or fauna or (as the case may be) such habitats or types of such habitats, whether or not any or all of them are rare or threatened.

(7) In considering whether to designate an area, the Scottish Ministers may have regard to the extent to which doing so will contribute to the mitigation of climate change.

(8) In considering whether it is desirable to designate an area as a Nature Conservation MPA, the Scottish Ministers may have regard to any social or economic consequences of designation.

(9) In considering whether to designate an area, the Scottish Ministers may have regard in particular to the views of any relevant delegate as to the desirability of conserving—

(a) marine flora or fauna,

(b) marine habitats or types of such habitat,

in the area.

(10) In considering whether to designate a Nature Conservation MPA for a purpose referred to in subsection (1)(b), the matters to which the Scottish Ministers may have regard include the degree to which a marine habitat or type of such habitat or (as the case may be) a feature of geological or geomorphological interest is representative of its type.

(11) For the purposes of—

(a) this section, conserving a thing includes—

(i) assisting in its conservation,

(ii) enabling or facilitating its recovery or increase,

(b) subsection (9), a “relevant delegate” means any delegate designated in a direction under section 12(1)(b) to exercise functions in relation to a regional marine plan for the Scottish marine region in which any part of the proposed Nature Conservation MPA lies.

Nature Conservation MPAs: further provision

69

(1) A designation order designating an area as a Nature Conservation MPA—

(a) must identify the area's boundaries,

(b) may provide for a boundary to be determined by, or by reference to, mean high water spring tide.

(2) A Nature Conservation MPA may include (in addition to an area of sea referred to in section 67(1)) an area of 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 (3) is satisfied.

(3) 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 Nature Conservation MPA (either in the order designating the MPA or on the ground for the purposes of exercising functions in relation to it) would be impossible or impracticable.

Nature Conservation MPAs: assessment of achievement of stated objectives

70

The Scottish Ministers must assess from time to time the extent to which in their opinion the stated conservation objectives of any Nature Conservation MPA have been achieved (see also section 103, in particular subsections (1) and (3)(d)).

Demonstration and Research MPAs

Demonstration and Research MPAs: additional requirements relating to designation

71

(1) An area may be designated by a designation order as a Demonstration and Research MPA if the Scottish Ministers consider it desirable to do so for any of the following purposes—

(a) demonstration of sustainable methods of marine management or exploitation,

(b) research into such matters.

(2) The order must state—

(a) whether it is for the purpose of demonstration or research, or both,

(b) the method or methods of marine management or exploitation to be demonstrated or researched.

(3) In considering whether to designate an area, the Scottish Ministers may—

(a) have regard in particular to the views of any relevant delegate as to the desirability of demonstrating or researching sustainable methods of marine management or exploitation in the area,

(b) have regard to any social or economic consequences of designation.

(4) For the purposes of subsection (3)(a), a “relevant delegate” means any delegate designated in a direction under section 12(1)(b) to exercise functions in relation to a regional marine plan for the Scottish marine region in which any part of the proposed Demonstration and Research MPA lies.

Demonstration and Research MPAs: further provision

72

(1) A designation order designating an area as a Demonstration and Research MPA—

(a) must identify the area's boundaries,

(b) may provide for a boundary to be determined by, or by reference to, mean high water spring tide.

(2) A Demonstration and Research MPA may include (in addition to an area of sea referred to in section 67(1)) an area of seashore lying above mean high water spring tide if—

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

(b) the inclusion of the area of seashore is necessary to further or support the purpose for which the area of sea is designated.

Historic MPAs

Historic MPAs: additional requirements etc.

73

(1) An area may be designated by a designation order as a Historic MPA if the Scottish Ministers consider it desirable to do so for the purpose of preserving a marine historic asset of national importance which is, or which they are satisfied may be, located in the area.

(2) The order must—

(a) specify any marine historic asset located, or which the Scottish Ministers are satisfied may be located, within the area,

(b) state the preservation objectives for the asset and the area,

(3) For the purpose of subsection (2)(c), an order may provide for the boundary to be determined by, or by reference to, mean high water spring tide.

(4) A Historic MPA may include (in addition to an area of sea referred to in section 67(1)) an area of seashore lying above mean high water spring tide if the area of seashore adjoins the area of sea.

(5) For the purposes of this Part, a marine historic asset is any of the following—

(a) a vessel, vehicle or aircraft (or a part of a vessel, vehicle or aircraft),

(b) the remains of a vessel, vehicle or aircraft (or a part of such remains),

(d) a building or other structure (or a part of a building or structure),

(e) a cave or excavation,

(f) a deposit or artefact (whether or not formerly part of a cargo of a ship) or any other thing which evidences, or groups of things which evidence, previous human activity.

Amendment or revocation of designation orders

74

A designation order may be amended or revoked by a further such order.

Consultation, urgent designation, representations etc.

Publicity and consultation etc. before designation

75

(1) Before making a designation order (or an order amending or revoking any such order), the Scottish Ministers must (except where section 77 provides otherwise)—

(a) publish notice of their proposal to make the order,

(b) consult such persons as they consider are likely to be interested in or affected by the making of the order—

(i) including, in particular, any local authority whose area is adjacent to the likely boundaries of the area proposed to be designated,

(ii) including those specified by virtue of section 27(4)(a).

(2) Notice under subsection (1)(a) must—

(a) be published in such manner as the Scottish Ministers consider is most likely to bring the proposal to the attention of any persons likely to be affected by the making of the order,

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

Publicity in relation to designation orders

76

(1) This section applies where the Scottish Ministers have made a designation order (or an order amending or revoking any such order).

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

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

(a) be published in such a manner as the Scottish Ministers consider is most likely to bring the order to the attention of any persons 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 Scottish Ministers must—

(a) make a copy of the order available for inspection at the address specified under subsection (3)(b) at all reasonable hours,

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

(5) The Scottish Ministers may charge a fee, not exceeding their expenses, for providing a copy under subsection (4)(b).

Urgent designation

77

(1) In any case where the Scottish Ministers consider there is an urgent need to protect the area proposed to be designated or (as the case may be) to protect a marine historic asset within the area (and so an urgent need to make a designation order)—

(a) they need not publish notice of their proposals under section 75(1)(a) or consult under section 75(1)(b),

(b) the order remains in force for such period, not exceeding 2 years, as is specified in it (but any order that specifies a period in excess of 6 months must be reviewed by the Scottish Ministers after 6 months has elapsed to assess whether it is still required).

(2) Upon expiration of the order, the Scottish Ministers may not re-designate the area (or any part of it) without—

(a) publishing notice of their proposals under section 75(1)(a),

(b) consulting under section 75(1)(b).

Representations and hearing in relation to proposed designation order

78

(1) The Scottish Ministers may, before deciding whether to make a designation order (or an order amending or revoking any such order), give any person the opportunity of making oral or written representations to them or to any person appointed by them for that purpose at a hearing.

(2) The Scottish Ministers may make regulations providing for the procedure to be followed (including decisions as to expenses) at any hearing held under subsection (1).

Duties relating to network

Creation of network of conservation sites

79

(1) In order to contribute to the achievement of the objective in subsection (2), the Scottish Ministers must designate areas as Nature Conservation MPAs under section 67.

(2) The objective is that the areas designated as Nature Conservation MPAs by the Scottish Ministers, taken together with any areas designated as marine conservation zones under section 116 of the 2009 Act and 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) any European marine site,

(b) any European offshore marine site,

(d) the whole or part of any Ramsar site.

(5) When complying with the duty imposed by subsection (1), the Scottish Ministers must have regard to any assimilated obligations (within the meaning of schedule 1 of the Interpretation Act 1978 or obligations under 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 force, the Scottish Ministers must—

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

(b) lay of copy of the statement before the Parliament.

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

(8) The Scottish Ministers must—

(a) keep under review any statement they have prepared under this section, and,

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

(9) In this section—

“European offshore marine site” has the meaning given by the Conservation of Offshore Marine Habitats and Species Regulations 2017 (S.I. 2017/1013),

“feature” means—marine flora or fauna,marine habitats or types of such habitat,features of geological or geomorphological interest,

“Ramsar site” has the same meaning as in section 37A of the Wildlife and Countryside Act 1981 (c.69),

“site of special scientific interest” includes a site within the meaning of Part 2 of the Wildlife and Countryside Act 1981.

Advice etc. as regards protection of certain marine areas

Advice etc. by Scottish Natural Heritage as regards Nature Conservation MPAs and Demonstration and Research MPAs

80

(1) Scottish Natural Heritage may give advice and guidance as to—

(a) the matters which are capable of damaging or otherwise affecting any protected feature (or the protected features) of a Nature Conservation MPA or (as the case may be) a stated purpose for a Demonstration and Research MPA,

(b) the matters which are capable of affecting any ecological or geomorphological process on which the conservation of any such protected feature or features or (as the case may be) any such stated purpose is (wholly or in part) dependent,

(c) how any stated conservation objectives for a Nature Conservation MPA or any stated purpose for a Demonstration and Research MPA may be furthered, or how the achievement of any such objectives or purpose may be hindered,

(d) how the effect of any activity or activities on any Nature Conservation MPA, Demonstration and Research MPA or such marine protected areas generally may be mitigated,

(e) which activities are, or are not, of equivalent environmental benefit (for the purposes of section 83(4)(b)(iii) (public authorities authorising certain acts)) to any particular damage to the environment (within the meaning of that provision).

(2) Advice or guidance as to any of the matters in paragraphs (a) to (e) of subsection (1) may be given—

(a) in relation to—

(i) a particular Nature Conservation MPA or Demonstration and Research MPA,

(ii) each such category of marine protected area, or all such marine protected areas, generally,

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

(3) Scottish Natural Heritage must give such advice to a public authority if the authority requests it.

Advice and guidance by the Scottish Ministers as regards MPAs

81

(1) The Scottish Ministers may give advice and guidance as to—

(a) the matters in section 80(1)(a) to (e),

(b) the matters which are capable of damaging or otherwise affecting any marine historic asset in a Historic MPA,

(c) how any stated preservation objectives for a Historic MPA may be furthered, or how the achievement of any such objectives may be hindered,

(d) the assessment by a public authority of the matters in section 83(4)(b)(i) and (ii) including what factors the authority should take into account.

(2) Advice or guidance as to any of the matters in paragraph (a) or (d) of subsection (1) may be given—

(a) in relation to—

(i) a particular Nature Conservation MPA, Demonstration and Research MPA or Historic MPA,

(ii) each such category of marine protected area, or all such marine protected areas, generally,

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

General duties of public authorities

Duties of public authorities in relation to marine protected areas etc.

82

(1) Where a public authority has any function the exercise of which is capable of affecting (other than insignificantly)—

(a) any protected feature of a Nature Conservation MPA,

(b) a stated purpose for a Demonstration and Research MPA,

(d) any ecological or geomorphological process on which the conservation of any protected feature in a Nature Conservation MPA, or on which a stated purpose for a Demonstration and Research MPA, is (wholly or in part) dependent,

the authority must comply with the requirements imposed by this section.

(2) The authority must (so far as is consistent with the proper exercise of its functions)—

(a) exercise its functions in the manner which it considers best furthers (as the case may be)—

(i) the stated conservation objectives for the Nature Conservation MPA,

(ii) the stated purpose for the Demonstration and Research MPA,

(iii) the stated preservation objectives for the Historic MPA,

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

(3) If the authority considers that any of its functions is such that the exercise of the function would or might significantly hinder the achievement of the relevant objectives or (as the case may be) purpose, it must inform the Scottish Ministers and (if appropriate) Scottish Natural Heritageor Historic Environment Scotland of that fact.

(4) Subject to subsection (6), subsection (5) applies in any case where a public authority intends to do an act which is capable of affecting (other than insignificantly) any feature, purpose, asset or process mentioned in paragraphs (a) to (d) of subsection (1).

(5) If the authority believes that there is or may be a significant risk of the act hindering the achievement of the objectives or purpose mentioned in subsection (2)(a), the authority must notify the Scottish Ministers and (if appropriate) Scottish Natural Heritageor Historic Environment Scotland of that fact.

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

(a) in relation to acts of a particular description—

(i) Scottish Natural Heritage has given advice or guidance to the authority under section 80,

(ia) Historic Environment Scotland has given advice or guidance to the authority under section 80A,

(ii) the Scottish Ministers have given advice or guidance to the authority under section 81,

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

(7) Where the authority has given notification under subsection (5), it must wait until the expiry of 28 days beginning with the date that the Scottish Ministers and (if appropriate) Scottish Natural Heritageor Historic Environment Scotland are notified (and if such notification is given on different dates, the later of those dates) before deciding whether to do the act.

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

(a) the Scottish Ministers notify 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 act.

(9) Where a public authority has any function, the exercise of which is capable of affecting (other than insignificantly) any protected feature of a Nature Conservation MPA, it must (so far as is consistent with the proper exercise of its functions) exercise its functions in the way best calculated by it to further the contribution of the Nature Conservation MPA in question to a network of conservation sites (namely a network referred to in section 79(2)).

(10) If a public authority considers that there has been any act or omission falling within subsection (11), it must inform the Scottish Ministers and (if appropriate) Scottish Natural Heritageor Historic Environment Scotland of that fact.

(11) The act or omission is one—

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

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

(i) the stated conservation objectives for a Nature Conservation MPA,

(ii) a stated purpose for a Demonstration and Research MPA,

(iii) the stated preservation objectives for a Historic MPA.

(12) In carrying out its duties under this section, a public authority must have regard to any advice or guidance given by Scottish Natural Heritage under section 80, by Historic Environment Scotland under section 80A or by the Scottish Ministers under section 81.

(13) For the purposes of subsections (3), (5) and (10)—

(a) it is appropriate to inform Scottish Natural Heritage where the exercise of the public authority's functions or the act or omission in question relates to a Nature Conservation MPA or a Demonstration and Research MPA.

(b) it is appropriate to inform Historic Environment Scotland where the exercise of the public authority's functions or the act or omission in question relates to a Historic MPA.

Duties of public authorities in relation to certain decisions

83

(1) This section applies where—

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

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

(i) a protected feature in a Nature Conservation MPA,

(ii) a stated purpose for a Demonstration and Research MPA,

(iii) a marine historic asset in a Historic MPA,

(iv) any ecological or geomorphological process on which the conservation of any protected feature in a Nature Conservation MPA, or on which the stated purpose for a Demonstration and Research MPA, is (wholly or in part) dependent.

(2) The public authority must notify the Scottish Ministers and (if appropriate) Scottish Natural Heritageor Historic Environment Scotland if it believes that there is or may be a significant risk of the act hindering the achievement of (as the case may be)—

(a) the stated conservation objectives for the Nature Conservation MPA,

(b) the stated purpose for the Demonstration and Research MPA,

(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, unless either—

(a) the Scottish Ministers notify the authority that it need not wait until the end of that period, or

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

(4) The authority must not grant authorisation for the doing of the act unless either—

(a) the person applying for the authorisation satisfies the authority that there is no significant risk of the act hindering the achievement of (as the case may be)—

(i) the stated conservation objectives for the Nature Conservation MPA,

(ii) the stated purpose for the Demonstration and Research MPA,

(iii) the stated preservation objectives for the Historic MPA,

(b) that person is not able to satisfy the authority as mentioned in paragraph (a) but—

(i) satisfies it that there is no other means of proceeding with the act which would create a substantially lower risk of hindering the achievement of those objectives or (as the case may be) that purpose,

(ii) satisfies it that the benefit to the public of proceeding with the act clearly outweighs the risk of damage to the environment (or the marine historic asset) that will be created by proceeding with it, and

(iii) in relation to a Nature Conservation MPA or a Demonstration and Research MPA, satisfies it and the Scottish Ministers that the person 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 marine protected area concerned.

(5) The reference in subsection (4)(b)(i) to other means of proceeding with an act includes a reference to proceeding with it—

(a) in another manner, or

(b) at another location.

(6) In a case which relates to a Nature Conservation MPA or a Demonstration and Research MPA and which falls within paragraph (b) of subsection (4) the authority must—

(a) 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 sub-paragraph (iii) of that paragraph are undertaken,

(b) notify the Scottish Ministers that it proposes to grant the authorisation and of the conditions subject to which it proposes to grant it,

(c) wait until the expiry of the period of 28 days beginning with the date of the notification before so granting the authorisation, unless the Scottish Ministers notify the authority that it need not wait until the end of that period.

(7) In a case which relates to a Historic MPA and which falls within paragraph (b) of subsection (4) the authority must—

(a) 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 before the act in question is commenced, a detailed archaeological investigation of the area is carried out,

(b) notify the Scottish Ministers that it proposes to grant the authorisation and of the conditions subject to which it proposes to grant it,

(c) wait until the expiry of the period of 28 days beginning with the date of the notification before so granting the authorisation, unless the Scottish Ministers notify the authority that it need not wait until the end of that period.

(8) In carrying out its duties under this section, a public authority must have regard to any advice or guidance given by Scottish Natural Heritage under section 80, by Historic Environment Scotland under section 80A or by the Scottish Ministers under section 81.

(9) For the purpose of subsection (2)—

(a) it is appropriate to inform Scottish Natural Heritage where the act in question relates to a Nature Conservation MPA or a Demonstration and Research MPA,

(b) it is appropriate to inform Historic Environment Scotland where the act relates to a Historic MPA.

(10) In this section—

“act” includes omission,

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

“damage” includes the prevention of an improvement.

Failure to comply with duties

84

(1) In relation to a Nature Conservation MPA or a Demonstration and Research MPA if, in the opinion of Scottish Natural Heritage, a public authority has failed—

(a) to act in accordance with advice or guidance given by Scottish Natural Heritage under section 80,

(b) to comply with any of its duties under section 82(2) or 83(3) or (4),

Scottish Natural Heritage may request from the authority an explanation in writing for the failure.

(2) Scottish Natural Heritage must send a copy of a request by it under subsection (1) to the Scottish Ministers.

(3) On receiving a request under this subsection (1), the public authority must—

(a) provide Scottish Natural Heritage with the requested explanation for the failure,

(b) send a copy of the explanation to the Scottish Ministers.

(3A) In relation to a Historic MPA if, in the opinion of Historic Environment Scotland, a public authority has failed—

(a) to act in accordance with advice or guidance given by Historic Environment Scotland under section 80A,

(b) to comply with any of its duties under section 82(2) or 83(3) or (4),

Historic Environment Scotland may request from the authority an explanation in writing for the failure.

(3B) Historic Environment Scotland must send a copy of a request by it under subsection (3A) to the Scottish Ministers.

(3C) On receiving a request under subsection (3A), the public authority must—

(a) provide Historic Environment Scotland with the requested explanation for the failure,

(b) send a copy of the explanation to the Scottish Ministers.

(4) If, in the opinion of the Scottish Ministers, a public authority has failed to act in accordance with advice or guidance given by them under section 81, they may request from the authority an explanation in writing of the failure, and the authority must provide them with it.

(5) In relation to a Historic MPA if, in the opinion of the Scottish Ministers, a public authority has failed to comply with any of its duties under section 82(2) or 83(3) or (4), the Ministers may request from the authority an explanation in writing for the failure, and the authority must provide them with it.

Marine conservation orders

85

(1) The Scottish Ministers may make one or more orders (“marine conservation orders”) for any or all of the following purposes—

(a) that of furthering the stated conservation objectives for a Nature Conservation MPA,

(b) that of furthering a stated purpose for a Demonstration and Research MPA,

(d) where any such marine protected area—

(i) includes all or part of (or is included in whole or part in) a European marine site, or

(ii) adjoins a European marine site,

that of protecting the European marine site.

(2) An order under this section may be made so as to apply to any area in Scotland.

(3) Section 86 provides some examples of the provision that may be made by a marine conservation order.

(4) An order under this section—

(a) may provide that paragraph (b) of section 97(1) does not apply in relation to—

(i) an offence under section 94 of contravening the order,

(ii) an offence under section 95 (where the order is made for the purpose of furthering the stated conservation objectives for a Nature Conservation MPA),

(iii) an offence under section 96 (where the order is made for the purpose of furthering the stated preservation objectives for a Historic MPA),

(b) may be made subject to specified exceptions,

(i) different parts of the protected area,

(ii) different times of the year,

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

(5) In this section and section 86—

(a) the conservation objectives for a European marine site mean the protection of the natural feature by reason of which the site is considered to be of significance in relation to the Habitats Directive or the Wild Birds Directive,

(b) “natural feature” in relation to a European marine site, means—

(i) any of its flora or fauna,

(ii) any natural habitat existing in it,

Example provisions for marine conservation orders

86

(1) The provision that may be made by a marine conservation order includes provision prohibiting, restricting or regulating—

(a) entry into or movement, activity or works in the area protected by the order (“the protected area”) by a—

(i) person,

(ii) animal,

(iii) vessel (or a specified type of vessel), or

(iv) vehicle or thing (or a specified type of vehicle or thing),

(b) the anchoring of any vessel (or types of vessel) within the protected area (including the fixing of moorings or anchors to the seabed),

(c) the killing, taking, destruction, molestation or disturbance of animals or plants of any description in the protected area,

(d) the removal of all or part of any thing (or category of things) from the protected area, including in particular all or part of a marine historic asset,

(e) the depositing (by any means) of anything in a protected area,

(f) the doing of anything in the protected area which, in the opinion of the Scottish Ministers, may—

(i) interfere with or damage the seabed,

(ii) damage or disturb any object in the protected area (including a marine historic asset),

(iii) otherwise cause harm to the protected area.

(2) The provision that may be made may also—

(a) restrict the speed at which any vessel or vehicle may move in the protected area or in any specified area outside the protected area where that movement might hinder—

(i) where the protected area is a Nature Conservation MPA, the stated conservation objectives for it,

(ii) where the protected area is a Demonstration and Research MPA, a stated purpose for it,

(iii) where the protected area is a Historic MPA, the stated preservation objectives for it,

(iv) where the protected area is a European marine site, the conservation objectives for it,

(b) include provision prohibiting or restricting entry into, or any movement or other activity on, any part of the seashore that adjoins the protected area by persons, animals or vehicles.

(3) For the purposes of subsection (1)(a), the reference to works or activities includes reference to—

(a) the use of equipment (or types of equipment),

(b) surveying or exploring a site (whether or not by intrusive methods),

Procedure for marine conservation orders

87

(1) Before making a marine conservation order (or an order amending or revoking any such order), the Scottish Ministers must comply with subsections (2) to (7) (except where section 88 provides otherwise).

(2) The Scottish Ministers must send a copy of a draft of the order to any persons the Ministers consider are likely to be interested in or affected by the making of the order.

(3) The Scottish Ministers must place a copy of the draft of a marine conservation order or (as the case may be) the draft of an order amending or revoking any such order in such place or places as they consider is or are likely to be most convenient for the purpose of enabling it to be inspected by persons likely to be affected by the making of the order.

(4) The Scottish Ministers—

(a) must provide a copy of a draft of an order to any person who requests one,

(b) may charge a fee, not exceeding their expenses in doing so, for providing a copy under this subsection,

(5) Where the proposed order would apply to an area any part of which is land, the Scottish Ministers must provide a copy of a draft to the planning authority in whose district the land is situated.

(6) The Scottish Ministers must publish notice of their proposal to make an order.

(7) The notice must—

(a) be published in such manner as the Scottish Ministers consider is most likely to bring the proposal to the attention of any persons who are likely to be affected by the making of it,

(b) state where the copy or copies of the draft order have been placed by the Scottish Ministers in accordance with subsection (3),

(8) In subsection (5), “planning authority” and “the district” of a planning authority have the same meaning as in section 1(1) of the Town and Country Planning (Scotland) Act 1997 (c.8).

Urgent orders

88

(1) In any case where the Scottish Ministers consider there is an urgent need to protect an area as respects which a marine conservation order may be made (and so an urgent need to make a marine conservation order), section 87 does not apply in relation to the making of the order.

(2) In such a case, the order (an “urgent marine conservation order”)—

(a) comes into force on such date as is specified in it,

(b) remains in force (unless revoked) for such period, not exceeding 12 months, as is specified in it.

(3) The Scottish Ministers must publish notice of the making of an urgent marine conservation order.

(4) The notice must—

(a) be published in such manner as the Scottish Ministers consider is most likely to bring the urgent marine conservation order to the attention of any persons who are likely to be affected by the making of it,

(b) state that a copy of the order may be inspected at such office of the Scottish Ministers as is specified in the notice,

(c) state that the Scottish Ministers have power to revoke the order and that any person affected by the making of the order may make representations to them.

(5) The Scottish Ministers must keep under review the need for an urgent marine conservation order to remain in force.

(6) The Scottish Ministers may, by an order under this subsection (an “urgent continuation order”), provide that an urgent marine conservation order is to remain in force for such period, not exceeding 12 months, beyond that specified under subsection (2)(b) as is specified in the urgent continuation order.

(7) The Scottish Ministers may not make an urgent continuation order unless—

(a) they intend to make a marine conservation order (a “permanent order”) in respect of the marine protected area concerned (in accordance with the requirements of section 87), and

(b) they have published notice of their proposal to make the permanent order.

Publicity in relation to marine conservation orders and urgent continuation orders

89

(1) The Scottish Ministers must send a copy of any order mentioned in subsection (2) to any persons they consider are likely to be interested in or affected by the order.

(2) The orders are—

(a) a marine conservation order (whether made in accordance with section 87 or an urgent marine conservation order made in accordance with section 88),

(b) an order amending or revoking a marine conservation order,

(3) The Scottish Ministers must—

(a) make a copy of any order referred to in subsection (2) available for inspection at one of their offices at all reasonable hours,

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

(4) The Scottish Ministers may charge a fee, not exceeding their expenses, for providing a copy under subsection (3)(b).

Representations and hearings in relation to proposed marine conservation orders etc.

90

(1) The Scottish Ministers may, before deciding to do any of the following—

(a) make a marine conservation order (whether in accordance with section 87 or an urgent marine conservation order in accordance with section 88),

(b) amend a marine conservation order,

give any person the opportunity of making oral or written representations to them or to any person appointed by them for that purpose at a hearing.

(2) The Scottish Ministers may make regulations providing for the procedure to be followed (including decisions as to expenses) at any hearing held under subsection (1).

Duty to assess impact of prohibition or restriction of activities

91

(1) Where an activity is restricted or prohibited under a marine conservation order made for a purpose mentioned in section 85(1)(a),(b) or (d), the Scottish Ministers must assess—

(a) the impact or potential impact of the restriction or prohibition within the area protected by the order (“the protected area”), and

(b) where the restriction or prohibition will cause displacement of the activity to another part of the Scottish marine area, the impact or potential impact of that displacement.

(2) The assessment must include an assessment of the extent to which the restriction or prohibition of the activity has had and may have an impact on—

(a) economic interests,

(b) social interests,

(d) the environment elsewhere in the Scottish marine area as a result of the activity being displaced.

(3) Where, following an assessment, the Scottish Ministers identify an adverse impact under subsection (2), they must take such steps as they consider are reasonable to minimise the impact as far as is practicable.

(4) This section does not apply where the order mentioned in subsection (1) is an urgent marine conservation order made in accordance with section 88.

Authorisation of things prohibited, regulated etc. by marine conservation orders

Authorisation of things prohibited, regulated etc. by a marine conservation order

92

(1) A marine conservation order may provide for the Scottish Ministers to issue permits authorising anything which would, apart from any such permit, be unlawful under the order.

(2) The Scottish Ministers may attach to any such permit any condition which they consider appropriate.

(3) A marine conservation order may, in so far as it applies to a Historic MPA, also provide for the Scottish Ministers—

(a) by direction issued to any persons (or categories of persons) specified in the order to authorise the doing by the persons of anything (or any category of thing) specified in the direction which would, apart from the direction, be unlawful under the order,

(b) by direction issued generally to authorise the doing by any person of any thing or category of thing specified in the order which would, apart from the direction, be unlawful under the order.

(4) A direction under subsection (3) may attach to any authorisation given by it any condition which the Scottish Ministers consider appropriate.

(5) Any provision in a marine conservation order of the kind referred to in this section may include provision for the procedure to apply in relation to the making of applications, and the determination of applications, for such permits or authorisations.

Delegation of issuing permits or authorisations

93

(1) A marine conservation order may provide for the Scottish Ministers by direction to delegate to any person (or group of persons) specified in the direction the issuing of permits of the kind described in section 92(1), or such permits in relation to such things (or such things in such circumstances) as are specified in the order.

(2) A marine conservation order may, in so far as it applies to a Historic MPA, provide for the Scottish Ministers by direction to delegate to any person (or group of persons) specified in the direction the issuing of authorisations of the kind described in section 92(3), or such authorisations in relation to such things (or things in such circumstances) as are specified in the order.

Offences

Offences: contravening a marine conservation order

94

(1) A person who contravenes a marine conservation order commits an offence.

(2) 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.

(3) 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.

(4) In this section “contravene” includes fail to comply.

Offences relating to protected features of a Nature Conservation MPA

95

(1) A person commits an offence under this section if the person—

(a) intentionally or recklessly does a prohibited act in a Nature Conservation MPA (the “protected area”), and

(b) the act has significantly hindered, or may significantly hinder, the achievement of the stated conservation objectives for the protected area.

(2) For the purposes of subsection (1), a person does a prohibited act if the person—

(a) kills or injures any animal in the protected area which is a protected feature of the area,

(b) picks, collects, cuts, uproots or destroys any plant in the protected area which is a protected feature of the area,

(d) damages or destroys any habitat or feature which is a protected feature of the protected area.

(3) A person who does anything which would, but for this subsection, amount to an offence under this section does not commit the offence if it is shown that—

(a) the act was the incidental result of a lawful operation,

(b) the person who carried out the lawful operation—

(i) took reasonable precautions for the purpose of carrying out the act, or

(ii) did not foresee, and could not reasonably have foreseen, that the act would be an incidental result of the carrying out of the lawful operation, and

(c) the person took such steps as were reasonably practicable in all the circumstances to minimise the hindrance (or potential hindrance) to the conservation objectives.

(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.

Offences relating to marine historic assets

96

(1) A person commits an offence under this section if the person—

(a) intentionally or recklessly does a prohibited act in a Historic MPA (the “protected area”), and

(b) the act has significantly hindered, or may significantly hinder, the achievement of the stated preservation objectives for the protected area.

(2) For the purposes of subsection (1), a person does a prohibited act if the person—

(a) carries out works or activities in the area which (or which are likely to)—

(i) damage or interfere with a marine historic asset,

(ii) have a significant impact on the protected area,

(b) removes, alters or disturbs a marine historic asset.

(3) A person who does anything which would, but for this subsection, amount to an offence under this section does not commit the offence if it is shown that—

(a) the act was the incidental result of a lawful operation,

(b) the person who carried out the lawful operation—

(i) took reasonable precautions for the purpose of carrying out the act, or

(ii) did not foresee, and could not reasonably have foreseen, that the act would be an incidental result of the carrying out of the lawful operation, and

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