Duties of public authorities
Section 125: General duties of public authorities in relation to MCZs
355.This section places a general duty on public authorities (defined in section 322) to carry out their functions in the manner that they consider best furthers – or least hinders – the conservation objectives set for MCZs. This duty only applies so far as is consistent with the proper exercise of a public authority’s functions and only where such functions may have a significant effect on the MCZ.
356.If a public authority thinks that the exercise of its functions will or might significantly hinder the conservation objectives of an MCZ, it has to notify the appropriate statutory nature conservation body (Natural England, the Joint Nature Conservation Committee, or the Countryside Council for Wales, depending on where the MCZ is).
357.Subsections (4) to (8) provide that a public authority must inform the appropriate statutory nature conservation body if it intends to carry out an activity which might significantly hinder the conservation objectives for an MCZ. This duty does not apply if standing advice from the relevant statutory nature conservation body applies. This means that statutory nature conservation bodies may issue standing guidance on routine activities (such as harbour works) and that public authorities do not have to notify them every time they plan to carry out such activities. Where a public authority has notified the appropriate statutory conservation body under subsection (5), the statutory nature conservation body has 28 days to provide any advice, after which public authorities may decide to go ahead as planned. However, this 28-day rule does not apply if the body notifies the authority that it need not wait or if the situation is urgent.
358.Subsections (9) to (11) require a public authority to inform certain bodies when it considers that an offence (in relation to which it has functions) that will or may significantly hinder the achievement of an MCZ’s conservation objectives has occurred. The bodies it must inform are the relevant authority (which is the enforcement authority for the area in which the MCZ is situated) and the statutory conservation body (which is the body competent to assess the effect of any act and advise the enforcement body).
359.Subsection (12) requires public authorities to have regard to any advice issued by the statutory conservation bodies under section 127.
Section 126: Duties of public authorities in relation to certain decisions
360.This section applies to all public authorities with responsibility for authorising applications for certain activities (such as proposed infrastructure development or a dredge) capable of affecting a protected feature of an MCZ or any geological or geomorphological processes on which the conservation of a feature is partially or wholly dependent. It does not apply where the effect is insignificant, in order to avoid capturing very minor matters. The section has effect in relation to all types of consent (however described), including licences granted by the MMO under Part 1 of the Act and planning permissions granted by local planning authorities.
361.Subsection (2) requires a public authority to inform the relevant statutory nature conservation body if it believes a proposed activity will hinder the achievement of the conservation objectives of an MCZ. Subsection (3) states that no authorisation may be granted until 28 days have passed since notice was given. This does not apply, however, where the appropriate statutory conservation body informs the authority that it does not need to wait 28 days or where the authority thinks that there is an urgent need to grant authorisation.
362.Subsections (5), (6) and (7) impose a duty on an authority not to grant authorisation unless it is satisfied that there is no significant risk that the activity will hinder the achievement of the conservation objectives or if certain conditions in subsection (7) are met. These conditions are: (i) the act cannot be carried out in any other way; (ii) the benefit of the act to the public clearly outweighs the risk of environmental damage; and (iii) the person seeking authorisation will take measures of equivalent environmental benefit to the damage that will be, or is likely to be, caused.
363.Subsection (10) requires public authorities to have regard to any advice or guidance given by the appropriate statutory conservation body.
Section 127: Advice and guidance by conservation bodies
364.This section confers powers and duties on the statutory nature conservation bodies (Natural England, the Joint Nature Conservation Committee and the Countryside Council for Wales) to give advice or guidance to public authorities in respect of MCZs. Public authorities are required to have regard to this advice or guidance when carrying out their duties under sections 125 and 126. This section does not limit or restrict the matters on which the conservation bodies may advise (in accordance with their existing functions) but identifies the types of MCZ-related advice and guidance to which other provisions in this part of the Act apply (namely the duties on public authorities).
365.Subsections (1) and (2) specify the issues on which advice or guidance may be given, and allows it to be issued in respect of one or more sites, and to one or more authorities. Advice and guidance may also be issued more generally on MCZs.
Section 128: Failure to comply with duties etc
366.This section enables the relevant statutory nature conservation body to obtain an explanation if it thinks a public authority has failed to exercise its functions to further, (or where permissible, least hinder), the conservation objectives of an MCZ, failed to notify the appropriate conservation body where it believes that an act requiring authorisation may have a significant risk of hindering the achievement of the conservation objectives of an MCZ or failed to act in accordance with the guidance provided by the statutory nature conservation body. This section has effect even when the public authority did not initially request the advice or guidance. This section is analogous to section 4(2) to (5) of the Natural Environment and Rural Communities Act 2006 (c. 16).
