2011 No. 559 (W.81)
The Marine Licensing (Exempted Activities) (Wales) Order 2011
Made
Laid before the National Assembly for Wales
Coming into force
The Welsh Ministers, as the appropriate licensing authority under section 113(4)(b) of the Marine and Coastal Access Act 20091, make the following Order in exercise of the powers conferred by sections 74(1), (2) and (3) and 316(1) of that Act, and by section 2(2) of the European Communities Act 19722.
The Welsh Ministers are designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the prevention, reduction and management of waste3.
In deciding to make this Order, the Welsh Ministers have had regard to the matters mentioned in section 74(4) of the Marine and Coastal Access Act 2009.
The Welsh Ministers have carried out a consultation in accordance with section 74(5) of that Act.
PART 1Introductory provisions
Title and commencementI101
1
The title of this Order is the Marine Licensing (Exempted Activities) (Wales) Order 2011.
2
This Order comes into force on 6 April 2011.
ApplicationI112
This Order applies in relation to any licensable marine activity for which the Welsh Ministers are the appropriate licensing authority under section 113 of the Marine and Coastal Access Act 20094.
InterpretationI53
In this Order—
“the Act” (“y Ddeddf”) means the Marine and Coastal Access Act 2009;
“activity” (“gweithgaredd”) means licensable marine activity5;
“disposal” (“gwaredu”) has the meaning given by Article 3 of the Waste Framework Directive;
“European site” (“safle Ewropeaidd”) means—
“exempt activity” (“gweithgaredd esempt”) has the meaning given by article 4;
“fishing operation” (“gweithred bysgota”) includes fishing for or taking shellfish but does not include an activity relating to the propagation or cultivation of shellfish;
“harbour authority” (“awdurdod harbwr”) has the meaning given by section 57(1) of the Harbours Act 19648;
“licensing authority” (“awdurdod trwyddedu”) means the Welsh Ministers as the appropriate licensing authority under section 113(4)(b) of the Act;
“lighthouse authority” (“awdurdod goleudy”) means a general lighthouse authority or a local lighthouse authority within the meaning of Part 8 of the Merchant Shipping Act 19959;
“plan or project” (“cynllun neu brosiect”) has the same meaning as in Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora10;
“Ramsar site” (“safle Ramsar”) has the same meaning as in section 37A of the Wildlife and Countryside Act 198111;
“shellfish” (“pysgod cregyn”) includes crustaceans and molluscs of any kind and any part of a shellfish;
“waste” (“gwastraff”) means anything that—
a
is waste within the meaning of Article 3(1) of the Waste Framework Directive, as read with Article 5(1) of that Directive, and
b
is not excluded from the scope of that Directive by Article 2(1), (2) or (3) of that Directive;
“the Waste Framework Directive” (“y Gyfarwyddeb Fframwaith Gwastraff”) means Directive 2008/98/EC of the European Parliament and of the Council on waste12F6, F14as last amended by Council Regulation (EU) 2017/997.
F15Modification of the Waste Framework Directive3A
1
For the purposes of this Order, the Waste Framework Directive is to be read in accordance with this article.
2
A reference to one or more Member States in a provision imposing an obligation or conferring a discretion on a Member State or Member States is to be read as a reference to the appropriate authority or local authority which, immediately before exit day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion in respect of Wales.
3
Article 2 is to be read as if—
a
in paragraph 2—
i
in the words immediately before point (a), for “other Community legislation” there were substituted “
retained EU law
”
;
ii
in points (b) and (c), for “Regulation (EC) No 1774/2002” there were substituted “
Regulation (EC) No 1069/2009
”
;
iii
in point (d), for the words from “Directive 2006/21/EC” to the end there were substituted “
the Mining Waste Directive
”
;
b
in paragraph 3, the words from “Without prejudice” to “Community legislation” were omitted;
c
paragraph 4 were omitted.
4
Article 5 is to be read as if paragraph 2 were omitted.
5
Article 6 is to be read as if—
a
paragraphs 1 to 3 were omitted;
b
in paragraph 4—
i
in the first sentence, for the words from “Where criteria” to “paragraphs 1 and 2” there were substituted “
Except where waste ceases to be waste in accordance with Council Regulation (EU) No 333/2011, Commission Regulation (EU) No 1179/2012 or Commission Regulation (EU) No 715/2013
”
;
ii
the second sentence were omitted.
6
Article 7 is to be read as if—
a
in paragraph 1—
i
the first and second sentences were omitted;
ii
in the third sentence, for “shall be binding” there were substituted “
shall, subject to paragraph 1A, be binding
”
;
b
after paragraph 1, there were inserted—
1A
Paragraph 1 is subject to—
a
a determination by the Welsh Ministers under regulation 8(1) of the Hazardous Waste (Wales) Regulations 2005 that a specific batch of waste is to be treated as hazardous waste;
b
a decision made by the Welsh Ministers under regulation 9(1) of the Hazardous Waste (Wales) Regulations 2005 that a specific batch of waste is to be treated as non-hazardous waste;
c
the treating of a specific batch of waste as hazardous or, as the case may be, non-hazardous, in accordance with regulation 8(2) or 9(2) of the Hazardous Waste (Wales) Regulations 2005;
d
regulations (if any) made by the Welsh Ministers under section 62A(2) of the Environmental Protection Act 1990 (lists of waste displaying hazardous properties).
c
paragraphs 2, 3 and 5 were omitted;
d
after paragraph 6, there were inserted—
6A
In this Article, the “list of waste” means the list established by Commission Decision 2000/532/EC.
e
paragraph 7 were omitted.
7
Article 23 is to be read as if—
a
a reference to the “competent authority” were a reference to the “appropriate authority”;
b
in paragraph 5, “or Community” were omitted.
8
Annex 3 is to be read as if, in entry HP 9, in the second sentence, “in the Member States” were omitted.
9
In reading the Waste Framework Directive in accordance with this article—
a
“appropriate authority” (“awdurdod priodol”) means the Welsh Ministers or the Natural Resources Body for Wales;
b
“local authority” (“awdurdod lleol”) means a county council or county borough council in Wales.
F15Meaning of “Mining Waste Directive”3B
1
In reading Article 2 of the Waste Framework Directive in accordance with article 3A, the reference to “the Mining Waste Directive” (as inserted by article 3A(3)(a)(iii)) means Directive 2006/21/EC of the European Parliament and of the Council on the management of waste from extractive industries, read in accordance with paragraphs (2) to (4).
2
Article 2 is to be read as if—
a
in paragraph 2(c), the reference to Article 11(3)(j) of Directive 2000/60/EC were a reference to that Article read in accordance with paragraph (4) of this article;
b
paragraphs 3 and 4 were omitted.
3
Article 3(1) is to be read as if, for “Article 1(a) of Directive 75/442/EEC” there were substituted “
Article 3(1) of the Waste Framework Directive, as read with Articles 5 and 6 of that Directive
”
.
4
In reading the Mining Waste Directive in accordance with this article, the reference to the “Waste Framework Directive” (as inserted by paragraph (3)) has the meaning given by article 3 of this Order read in accordance with article 3A.
5
For the purposes of paragraph (2), Article 11(3)(j) of Directive 2000/60/EC is to be read as if—
a
the references to “Member States” were references to the “Welsh Ministers or the Natural Resources Body for Wales”;
b
at the end, there were inserted—
and “environmental objective”, in relation to a river basin district (within the meaning of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017), has the same meaning as in those Regulations.
PART 2Exempt activities – general provisions
Exemption from need for marine licenceI64
1
A marine licence is not needed for an activity carried on in Wales F10, the Welsh inshore region or the Welsh offshore region that is an exempt activity.
2
An activity is an exempt activity to the extent that—
a
it is an activity to which this article applies 13; and
b
where the application of this article to an activity is subject to a condition specified in Part 3, that condition is satisfied in relation to that activity.
3
But this is subject to paragraph (4) and article 5.
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 wasteI15
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 need to attain the objectives mentioned in Article 13 of the Waste Framework Directive.
4
Condition 3 is that the establishment or undertaking must be registered with the F1Natural Resources Body for Wales.
5
The F2Natural Resources Body for Wales must, for the purposes of paragraph (4), 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 licensing authority’s 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
“non-hazardous waste” has the same meaning as in the Waste Framework Directive;
c
“recovery” has the meaning given by Article 3 of the Waste Framework Directive.
PART 3Activities to which article 4 (exemption from need for marine licence) applies, and conditions
Interpretation of this PartI126
1
In this Part, a reference to a numbered item is a reference to that numbered item in section 66(1) of the Act.
2
In this Part—
a
a reference to a “deposit” is a reference to a deposit falling within item 1 (deposits within the UK marine licensing area etc), item 2 (deposits from British vessels etc anywhere in the sea etc), item 3 (deposit from vehicle, vessel etc loaded in the United Kingdom except Scotland or the UK marine licensing area) or, except as otherwise provided, item 10 (deposit of explosives within the UK marine licensing area etc);
b
a reference to a “dredging activity” is a reference to an activity falling within item 9 (to carry out any form of dredging within the UK marine licensing area etc);
c
a reference to a “removal activity” is a reference to an activity falling within item 8 (use of a vehicle, vessel etc to remove a substance or object from the sea bed within the UK marine licensing area);
d
a reference to a “works activity” is a reference to an activity falling within item 7 (construction, alteration or improvement of works within the UK marine licensing area etc).
Activities falling within Part 6 of the Merchant Shipping Act 1995I137
Article 4 applies to an activity falling within the subject matter of Part 6 of the Merchant Shipping Act 199514 (prevention of pollution).
Safety directions under the Merchant Shipping Act 1995I148
Article 4 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 199515 (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 activitiesI159
Article 4 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 etcI1610
Article 4 applies to an activity carried on for the purpose of fighting, or preventing the spread of, any fire.
Air accident investigationI1711
Article 4 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 operationsI1812
1
Article 4 applies to any of the following activities if carried on in the course of a fishing operation—
a
the deposit of fishing gear, other than a deposit made for the purpose of disposal;
b
a removal activity or dredging activity carried on for the purpose of—
i
fishing for or taking fish, or
ii
removing fishing gear;
c
the deposit by way of return to the sea of any fish or other object.
2
Article 4 also applies to the deposit by way of return to the sea of any fish during the course of fish processing at sea.
3
In this article—
a
“fish” includes shellfish and any part of a fish;
b
“fishing gear” includes gear used to fish for or take shellfish, but does not otherwise include anything used in connection with the propagation or cultivation of shellfish.
Shellfish propagation and cultivationI1913
1
Article 4 applies to—
a
the deposit of any shellfish, trestle, raft, cage, pole, rope or line in the course of the propagation or cultivation of shellfish;
b
a removal activity or dredging activity carried on for the purpose of moving shellfish within the sea in the course of its propagation or cultivation.
2
But article 4 does not apply to any such 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.
Deposit of marine chemical and marine oil treatment substances etcI2014
1
Article 4 applies to the deposit of any–
a
marine chemical treatment substance;
b
marine oil treatment substance;
c
substance used or intended to be used for removing surface fouling matter from the surface of the sea or of the sea bed.
2
Paragraph (1) 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 licensing authority.
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 may 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 licensing authority.
6
Condition 4 is that no deposit of any marine chemical treatment substance or marine oil treatment substance may be made below the surface of the sea except with the approval of the licensing authority.
7
In this article, “marine chemical treatment substance” and “marine oil treatment substance” have the same meaning as in section 107(2) of the Act.
Deposit of equipment to control, contain or recover oil etcI2115
1
Article 4 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
But article 4 does not apply to any such deposit to the extent that it falls within item 10.
Scientific instruments etcI2216
1
Article 4 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;
c
to the deposit of any tracer;
d
to a removal activity carried on for the purpose of removing any scientific instrument or associated equipment referred to in sub-paragraph (a).
2
Sub-paragraphs (b) and (c) of paragraph (1) are subject to conditions 1 and 2.
3
Condition 1 is that the reagent or tracer must be one the use of which is for the time being approved for the purposes of this Order by the licensing authority.
4
Condition 2 is that the reagent or tracer must be used in accordance with any conditions to which the approval is subject.
5
But article 4 does not apply to —
a
any such deposit made for the purpose of disposal;
b
any such deposit that causes or is likely to cause obstruction or danger to navigation;
c
any such deposit or removal activity–
i
that falls within sub-paragraph (a) or (b) of paragraph 6; and
ii
that is not directly connected with or necessary to the management of the site referred to in that sub-paragraph.
6
A deposit or removal 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; or
b
it is likely to have an effect on a Ramsar site.
Deposits in the course of aggregates or mineral dredgingI2317
1
Article 4 applies—
a
to the deposit on the site of dredging for aggregates or other minerals of any substance or object taken from the sea in the course of such dredging (other than any of the aggregates or minerals being dredged);
b
to the deposit of waters (whether by overflow or pumped discharge) from the hold of a vessel—
i
in the normal course of dredging for aggregates or other minerals, or
ii
at the site of such dredging following its completion or during the return journey of the vessel.
Maintenance of coast protection, drainage and flood defence worksI218
1
Article 4 applies—
a
to an activity carried on by or on behalf of F3the Natural Resources Body for Wales or the Environment Agency for the purpose of maintaining any—
i
coast protection works;
ii
drainage works;
iii
flood defence works;
b
to an activity carried on by or on behalf of a coast protection authority (within the meaning of the Coast Protection Act 194917) for the purpose of maintaining any coast protection works.
2
Paragraph (1) is subject to the condition that the activity is carried on within the existing boundaries of the works being maintained.
3
Article 4 does not apply in relation to any such activity that consists of beach replenishment.
Emergency works in response to flood or flood riskI319
1
Article 4 applies to an activity carried on by or on behalf of F4the Natural Resources Body for Wales or the Environment Agency for the purpose of executing emergency works in response to any flood or the imminent risk of any flood.
2
Paragraph (1) is subject to the condition that the activity may only be carried on in accordance with an approval granted by the licensing authority for that purpose.
Use of vehicles to remove litter or seaweed from beachesI2420
1
Article 4 applies to a removal activity using a vehicle, carried on by or on behalf of a local authority, for the purpose of removing any litter or seaweed from a beach.
2
But article 4 does not apply to any such removal activity—
a
that falls within sub-paragraph (a) or (b) of paragraph (3); and
b
that is not directly connected with or necessary to the management of the site referred to in that sub-paragraph.
3
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; or
b
it is likely to have a significant effect on a Ramsar site.
4
In paragraph (1), “local authority” has the meaning given by section 68(9) of the Act.
5
In paragraph (3)(a) and (b), “likely” has the same meaning as in Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.
Deposits in the course of normal navigation or maintenanceI2521
1
Article 4 applies to the deposit from a vehicle, vessel, aircraft or marine structure in the course of its normal navigation or maintenance.
2
But article 4 does not apply to any such deposit–
a
made for the purpose of disposal;
b
to the extent that it falls within item 10.
Maintenance of harbour worksI2622
1
Article 4 applies to a deposit, removal activity or works activity carried on by or on behalf of a harbour authority for the purpose of maintaining any harbour works.
2
Paragraph (1) is subject to the condition that the activity is carried on within the existing boundaries of the works being maintained.
Removal of obstruction or danger to navigationI2723
1
Article 4 applies to a removal activity carried on by a person referred to in paragraph (2) for the purpose of removing anything causing or likely to cause obstruction or danger to navigation.
2
The persons are—
a
a conservancy authority (within the meaning given by section 313(1) of the Merchant Shipping Act 199518;
b
a harbour authority;
c
a lighthouse authority;
d
a person having powers under any enactment or statutory order to work or maintain a canal or other inland navigation, including a navigation in tidal water.
Moorings and aids to navigationI2824
1
Article 4 applies—
a
to a deposit or works activity carried on by a person referred to in paragraph (2) for the purpose of providing a pile mooring, swinging mooring, trot mooring or aid to navigation;
b
to a removal activity carried on by any such person for the purpose of removing any such mooring or aid to navigation.
2
The persons are—
a
a harbour authority;
b
a lighthouse authority;
c
any other person, where the activity is carried on in accordance with a consent required from, and granted by, any such authority.
3
But article 4 does not apply to any such activity which consists of the deposit or the construction of a pontoon.
Markers for European marine sitesI425
1
Article 4 applies to—
a
a deposit by F5the Natural Resources Body for Wales for the purpose of installing a marker for the purposes of F9regulation 37(1) of the Conservation of Habitats and Species Regulations 2017 (installation of markers indicating the existence and extent of a European marine site within the meaning of those Regulations20);
b
a removal activity carried on by F5the Natural Resources Body for Wales for the purpose of removing a marker referred to in sub-paragraph (a).
2
Paragraph (1) is subject to the condition that the activity may only be carried on in accordance with an approval granted by the licensing authority for that purpose.
Launching of vessels etcI2926
Article 4 applies to a deposit in connection with the launching of any vehicle, vessel, aircraft, marine structure or floating container.
Dismantling of shipsI3027
1
Article 4 applies to a deposit or removal activity carried on as part of dismantling a ship that is waste.
2
But article 4 does not apply to any such deposit to the extent that it falls within item 10.
Diver trails within restricted areasI3128
Article 4 applies to a deposit or removal activity carried on for the purpose of placing, securing or removing signage or other identifying markers relating to a wreck within an area designated as a restricted area within the meaning of section 1 of the Protection of Wrecks Act 197321.
Coastguard activities – safety purposes and trainingI3229
Article 4 applies to an activity carried on by or on behalf of the Secretary of State for Transport, acting through the Maritime and Coastguard Agency, for the purpose of—
a
securing the safety of a vessel, aircraft or marine structure;
b
saving life; or
c
training for any purpose referred to in paragraph (a) or (b).
Deposit and use of flares etc – safety purposes and trainingI3330
Article 4 applies to the deposit or use of any distress flare, smoke float or similar pyrotechnic substance or object for the purpose of–
a
securing the safety of a vessel, aircraft or marine structure;
b
saving life; or
c
training for any purpose referred to in sub-paragraph (a) or (b).
Cables and pipelines – authorised emergency inspection and repairI3431
1
Article 4 applies to a deposit, removal activity or dredging activity carried on for the purpose of executing emergency inspection or repair works to any cable or pipeline.
2
Paragraph (1) is subject to the condition that the activity may only be carried on in accordance with an approval granted by the licensing authority for that purpose.
3
But article 4 does not apply to any such deposit falling within item 10.
Bored tunnelsI732
1
Article 4 applies to a deposit or works activity carried on wholly under the sea bed in connection with the construction or operation of a bored tunnel.
2
Paragraph (1) is subject to conditions 1 and 2.
3
Condition 1 is that notice in writing of the intention to carry on the activity must be given to the licensing authority before the activity is carried on.
4
Condition 2 is that the activity must not adversely affect the environment of Wales F11, the Welsh inshore region and the Welsh offshore region or the living resources that it supports.
5
But article 4 does not apply to any such deposit carried on for the purpose of disposal.
Rights of foreign vessels etc under international lawI933
1
Article 4 applies to an activity to the extent that it is carried on in exercise of a right under rules of international law, by or in relation to–
a
a third country vessel;
b
a warship, naval auxiliary, other vessel or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service (whether or not the warship, naval auxiliary or other vessel is a third country vessel).
Loading of a vehicle or vessel etc for incineration outside Wales F12, the Welsh inshore region and the Welsh offshore regionI834
1
Article 4 applies to the loading of a vehicle, vessel, aircraft, marine structure or floating container with any substance or object for incineration–
a
in the Scottish inshore region;
b
in the UK marine licensing area other than in Wales F13, the Welsh inshore region and the Welsh offshore region;
c
outside the UK marine licensing area and the Scottish inshore region, where the incineration is to take place on—
i
a British vessel or marine structure; or
ii
a container floating in the sea, if the incineration is controlled from a British vessel, British aircraft or British marine structure.
2
But paragraph (1) applies only to the extent that such an activity falls within item 13.
(This note is not part of the Order)