The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011

Made: 10th March 2011

Coming into force: 6th April 2011

The Scottish Ministers make the following Order in exercise of the powers conferred by sections 32(1), (2) and (3) and 165(1) of the Marine (Scotland) Act 2010 and all other powers enabling them to do so.

In deciding to make this Order, the Scottish Ministers have had regard to the matters mentioned in section 32(4) of that Act.

The Scottish Ministers have carried out consultation in accordance with section 32(5) of that Act.

In accordance with section 165(5) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

PART 1 — Introductory provisions

Citation and commencement

1

This Order may be cited as the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 and comes into force on 6th April 2011.

Interpretation

2

• (1) In this Order, a reference to—

• (a) a particular numbered item (without further specification) is a reference to that numbered item in section 21(1) of the 2010 Act; and

• (b) a particular numbered item “of the 2009 Act” is a reference to that numbered item in section 66(1) of the 2009 Act.

• (2) In this Order, except where the context otherwise requires—

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

• “the 2010 Act” means the Marine (Scotland) Act 2010;

• “activity” means licensable marine activity;

• “disposal” has the meaning given by Article 3 of the Waste Framework Directive;

• “a European site” means—a European site within the meaning of regulation 10(1) of the Conservation (Natural Habitats &c.) Regulations 1994 ; a European offshore marine site within the meaning of regulation 18 of the Conservation of Offshore Marine Habitats and Species Regulations 2017;

• “exempt activity” has the meaning given by article 3;

• “fish” includes shellfish and any part of a fish;

• “fishing operation” includes fishing for or taking shellfish but does not include an activity relating to the propagation or cultivation of shellfish;

• “harbour authority” has the meaning given by section 57(1) of the Harbours Act 1964 ;

• “lighthouse authority” means a general lighthouse authority or a local lighthouse authority within the meaning of Part 8 of the Merchant Shipping Act 1995 ;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “an MPA” means a Nature Conservation MPA or a Historic MPA designated under section 67 of the 2010 Act or a marine protected area designated under section 116 of the 2009 Act;

• “plan or project” has the same meaning as in Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ;

• “Ramsar site” has the same meaning as in section 37A of the Wildlife and Countryside Act 1981 ;

• “shellfish” includes crustaceans and molluscs of any kind and any part of a shellfish;

• “waste” has the same meaning as in section 75(2) of the Environmental Protection Act 1990 as read with section 75A of that Act;

• “the Waste Framework Directive” means Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives, as last amended by Commission Directive (EU) 2015/1127 amending Annex II to Directive 2008/98/EC.

• (3) In the following provisions, “likely” has the same meaning as in Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora—

• (a) sub-paragraphs (a) and (b) of article 17(4);

• (b) sub-paragraphs (a) and (b) of article 18(3); ...

• (ba) sub-paragraphs (b) and (c) of article 18A(6);

• (bb) sub-paragraphs (c) and (d) of article 18B(5); and

• (c) sub-paragraphs (a) and (b) of article 22(3).

• (4) A reference in this Order to anything done in writing includes a reference to an electronic communication, as defined in section 15 of the Electronic Communications Act 2000 (general interpretation) which has been recorded in written form and is capable of being reproduced in that form.

PART 2 — Exempt activities – general provisions

Exemption from need for marine licence

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• (1) A marine licence is not needed for an activity that is an exempt activity.

• (2) An activity is an exempt activity to the extent that—

• (a) it is an activity to which an article in Part 3 applies; and

• (b) it satisfies any conditions specified in that article in relation to that activity.

• (3) But this is subject to paragraph (4) and article 4.

• (4) Nothing in this Order makes an activity an exempt activity to the extent to which the carrying on of the activity is contrary to international law.

Activities relating to disposal or recovery of waste

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• (1) An activity carried on by an establishment or undertaking involving the disposal or recovery of waste is not an exempt activity unless the conditions in this article are satisfied.

• (2) Condition 1 is that the establishment or undertaking is carrying out—

• (a) disposal of its own non-hazardous waste at the place of production; or

• (b) recovery of waste.

• (3) Condition 2 is that the type and quantity of waste involved and the method of disposal or recovery are consistent with the objective that waste management is carried out without endangering human health, without harming the environment and, in particular:

• (a) without risk to water, air, soil, plants or animals;

• (b) without causing nuisance through noise or odour; and

• (c) without adversely affecting the countryside or places of special interest.

• (4) Condition 3 is that the establishment or undertaking must be registered with the Scottish Ministers.

• (5) The Scottish Ministers must maintain a register containing the name and address of any establishment or undertaking carrying on an exempt activity involving the disposal or recovery of waste in the Scottish marine area.

• (6) The register may be kept in any form.

• (7) In this article—

• (a) “establishment” and “undertaking” have the same meaning as in Articles 23 and 24 of the Waste Framework Directive;

• (b) “recovery” has the meaning given by Article 3 of the Waste Framework Directive;

• (c) “non-hazardous waste” means any waste which is not special waste within the meaning of regulation 2 of the Special Waste Regulations 1996.

PART 3 — Exempt activities and conditions

Interpretation of this Part

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In this Part—

• (a) a reference to a “deposit” is a reference to a deposit falling within item 1 (deposits within Scottish marine area), 2 (deposits from vehicle, vessel etc. loaded in Scotland or Scottish marine area) or, except as otherwise provided, 8 (deposits of explosives within Scottish marine area);

• (b) a reference to a “dredging activity” is a reference to an activity falling within item 7 (dredging within Scottish marine area);

• (c) a reference to a “removal activity” is ,except as otherwise provided, a reference to an activity falling within item 6 (use of vehicle, vessel etc. to remove substance or object from seabed within Scottish marine area);

• (d) a reference to a “works activity” is a reference to an activity falling within item 5 (construction, alteration or improvement of works within Scottish marine area).

Safety directions under the Merchant Shipping Act 1995

6

This article applies to an activity carried on—

• (a) by or on behalf of the Secretary of State in exercise of a power under Schedule 3A to the Merchant Shipping Act 1995 (safety directions);

• (b) by any person for the purpose of complying with a direction under that Schedule; or

• (c) by any person for the purpose of avoiding interference with action taken by virtue of that Schedule.

Salvage activities

7

This article applies to an activity carried on, in the course of a salvage operation, for the purpose of ensuring the safety of a vessel or preventing pollution.

Fire fighting etc.

8

This article applies to an activity carried on for the purpose of fighting, or preventing the spread of, any fire.

Air accident investigation

9

This article applies to a deposit or removal activity carried on for the purpose of recovering any substance or object as part of an investigation into any accident involving an aircraft.

Fishing – deposits

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• (1) This article applies—

• (a) to the deposit by way of return to the sea—

• (i) of any fish during the course of a fishing operation; or

• (ii) of any other object during the course of a fishing operation,

provided that the fish or other object has not been landed before being so returned;

• (b) to the deposit by way of return to the sea of any fish during the course of fish processing at sea.

• (2) This article does not apply—

• (a) to a deposit of fishing gear made for the purpose of disposal;

• (b) except in the case of a deposit falling within paragraph (1)(a)(ii), to a deposit to the extent that it falls within item 8.

Fishing – removal activity and dredging activity

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This article applies—

• (a) to a removal activity carried on for the purpose of removing fishing gear in the course of a fishing operation;

• (b) to a dredging activity carried on in the course of any fishing operation.

Propagation and cultivation of fish – deposits

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• (1) This article applies to the deposit of any—

• (a) trestle;

• (b) raft;

• (c) cage;

• (d) pole;

• (e) rope;

• (f) line; or

• (g) within controlled waters, substance which is liable to cause pollution of the water environment,

carried on in the course of the propagation or cultivation of fish.

• (2) Subject to paragraph (3), this article does not apply to a deposit—

• (a) made for the purpose of disposal;

• (b) made for the purpose of creating, altering or maintaining an artificial reef; or

• (c) that causes or is likely to cause obstruction or danger to navigation.

• (3) Paragraph (2)(a) does not apply to a deposit of the type described in paragraph (1)(g).

• (4) In this article—

• “controlled waters” means that part of the Scottish marine area which is within the area extending landward from the three mile limit;

• “pollution” means the direct or indirect introduction, as a result of human activity, of a substance or heat into the water environment, or any part of it, which may give rise to any harm; and “harm” means—harm to the health of human beings or other living organisms;harm to the quality of the water environment, including—harm to the quality of the water environment taken as a whole;other impairment of, or interference with, the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems;offence to the senses of human beings;damage to property; orimpairment of, or interference with, amenities or other legitimate uses of the water environment;

• “substance” means—any chemical used for medicinal purposes or otherwise, with the exception of any reagent or chemical or particle tracer used in connection with any scientific experiment or survey,any organic or biological matter;

• “three mile limit” means the limit consisting of a line every point of which is at a distance of 3 miles on the seaward side from the nearest point of the baseline from which the breadth of the territorial sea of the United Kingdom adjacent to Scotland is measured; and “miles” means international nautical miles of 1,852 metres; and

• “the water environment” has the same meaning as in section 3(2) of the Water Environment and Water Services (Scotland) Act 2003.

Propagation and cultivation of fish – removal activity and dredging activity

13

This article applies to—

• (a) a removal activity carried on in the course of the propagation or cultivation of fish;

• (b) a dredging activity carried on in the course of the propagation or cultivation of shellfish.

Oil and gas activities and carbon dioxide storage

14

• (1) This article applies to anything done—

• (a) in the course of carrying on an activity for which a licence under section 3 of the Petroleum Act 1998 or section 2 of the Petroleum (Production) Act 1934 is required;

• (b) for the purpose of constructing or maintaining a pipeline as respects any part of which an authorisation (within the meaning of Part 3 of the Petroleum Act 1998) is in force; or

• (c) in the course of carrying on an activity for which a licence under section 4 or 18 of the Energy Act 2008 is required.

• (2) For the purposes of paragraph (1)(a) or (c), activities are to be regarded as activities for which a licence of the description in question is required if, by virtue of such a licence, they are activities which may be carried on only with the consent of the Secretary of State or another person.

Deposits of marine chemical and marine oil treatment substances etc.

15

• (1) This article applies to the deposit of any—

• (a) marine chemical treatment substance;

• (b) marine oil treatment substance;

• (c) marine surface fouling cleaner.

• (2) This article is subject to conditions 1 to 4.

• (3) Condition 1 is that the substance must be one the use of which is for the time being approved for the purposes of this Order by the Scottish Ministers.

• (4) Condition 2 is that the substance must be used in accordance with any conditions to which the approval is subject.

• (5) Condition 3 is that no deposit must be made in an area of the sea of a depth of less than 20 metres or within one nautical mile of any such area except with the approval of the Scottish Ministers.

• (5A) Condition 4 is that no deposit of any substance may be made below the surface of the sea except with the approval of the Scottish Ministers.

• (6) In paragraph (1)—

• (a) “marine chemical treatment substance” and “marine oil treatment substance” have the same meaning as in section 107(2) of the 2009 Act;

• (b) “marine surface fouling cleaner” means any substance used or intended to be used for removing surface fouling matter from the surface of the sea or of the sea bed.

Deposit of equipment to control, contain or recover oil etc.

16

• (1) This article applies to the deposit of any equipment for the purpose of controlling, containing or recovering any—

• (a) oil;

• (b) mixture containing oil;

• (c) chemical;

• (d) flotsam; or

• (e) algal bloom.

• (2) This article does not apply to a deposit to the extent that it falls within item 8.

Scientific instruments etc. – deposits

17

• (1) This article applies—

• (a) to the deposit of any scientific instrument or associated equipment in connection with any scientific experiment or survey;

• (b) to the deposit of any reagent or any chemical or particle tracer.

• (2) In the case of the deposit of any reagent or chemical or particle tracer, this article is subject to the condition that the use of the reagent or the chemical or particle tracer must be for the time being approved for the purposes of this Order by the Scottish Ministers.

• (3) This article does not apply to—

• (a) a deposit made for the purpose of disposal;

• (b) a deposit that causes or is likely to cause obstruction or danger to navigation;

• (c) a deposit—

• (i) that falls within sub-paragraph (a), (b) or (c) of paragraph (4); and

• (ii) that is not directly connected with or necessary to the management of the site or area referred to in that sub-paragraph.

• (4) A deposit falls within this paragraph if—

• (a) it is a plan or project likely (either alone or in combination with other plans or projects) to have a significant effect on a European site;

• (b) it is likely to have a significant effect on a Ramsar site; or

• (c) it is capable of affecting (other than insignificantly)—

• (i) the protected features of an MPA;

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

Scientific instruments etc. – removal activity

18

• (1) This article applies to a removal activity carried on for the purpose of removing any scientific instrument or associated equipment referred to in article 17(1)(a).

• (2) This article does not apply to such an activity—

• (a) that falls within sub-paragraph (a), (b) or (c) of paragraph (3); and

• (b) that is not directly connected with or necessary to the management of the site or area referred to in that sub-paragraph.

• (3) Such an activity falls within this paragraph if—

• (a) it is a plan or project likely (either alone or in combination with other plans or projects) to have a significant effect on a European site;

• (b) it is likely to have a significant effect on a Ramsar site; or

• (c) it is capable of affecting (other than insignificantly)—

• (i) the protected features of an MPA;

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