HL Deb 15 July 2004 vol 663 cc1383-7

11 Clause 100, Leave out Clause 100

12 Clause 101, Leave out Clause 101

13 Clause 102, page 78, line 10, after "extension", insert "of a generating station"

14 Clause 102, page 79, line 13, at end insert—

"36B Duties in relation to navigation

  1. Neither the Secretary of State nor the Scottish Ministers may grant a consent in relation to any particular offshore generating activities if he considers, or (as the case may be) they consider, that interference with the use of recognised sea lanes essential to international navigation—
    1. is likely to be caused by the carrying on of those activities; or
    2. is likely to result from their having been carried on.
  2. It shall be the duty both of the Secretary of State and of the Scottish Ministers, in determining—
    1. whether to give a consent for any particular offshore generating activities, and
    2. what conditions to include in such a consent, to have regard to the extent and nature of any obstruction of or danger to navigation which (without amounting to interference with the use of such sea lanes) is likely to be caused by the carrying on of the activities, or is likely to result from their having been carried on.
  3. In determining for the purposes of this section what interference, obstruction or danger is likely and its extent and nature, the Secretary of State or (as the case may be) the Scottish Ministers must have regard to the likely overall effect (both while being carried on and subsequently) of—
    1. the activities in question; and
    2. such other offshore generating activities as are either already the subject of consents or are activities in respect of which it appears likely that consents will be granted.
  4. For the purposes of this section the effects of offshore generating activities include—
    1. how, in relation to those activities, the Secretary of State and the Scottish Ministers have exercised or will exercise their powers under section 36A above and section 103 of the Energy Act 2004 (extinguishment of public rights of navigation); and
    2. how, in relation to those activities, the Secretary of State has exercised or will exercise his powers under sections 96 and 97 and Chapter 2 of Part 3 of that Act (safety zones and decommissioning).
  5. If the person who has granted a consent in relation to any offshore generating activities thinks it appropriate to do so in the interests of the safety of navigation, he may at any time vary conditions of the consent so as to modify in relation to any of the following matters the obligations imposed by those conditions—
    1. the provision of aids to navigation (including, in particular, lights and signals);
    2. the stationing of guard ships in the vicinity of the place where the activities are being or are to be carried on; or
      3. 1384
    3. the taking of other measures for the purposes of, or in connection with, the control of the movement of vessels in that vicinity.
  6. A modification in exercise of the power under subsection must be set out in a notice given by the person who granted the consent to the person whose obligations are modified.
  7. In this section—
consent' means a consent under section 36 above; `offshore generating activities' means—
  1. the construction or operation of a generating station that is to comprise or comprises (in whole or in part) renewable energy installations; or
  2. an extension of a generating station that is to comprise (in whole or in part) renewable energy installations or an extension of such an installation;
the use of recognised sea lanes essential to international navigation' means—
  1. anything that constitutes the use of such a sea lane for the purposes of Article 60(7) of the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941); or
  2. any use of waters in the territorial sea adjacent to Great Britain that would fall within paragraph (a) if the waters were in a Renewable Energy Zone.
  3. In subsection 'extension', in relation to a renewable energy installation, has the same meaning as in Chapter 1 of Part 3 of the Energy Act 2004."

15 Clause 102, page 79, line 22, at end insert—

() In subsection (1) of section 35 of the Coast Protection Act 1949 (c. 74) (operations not requiring consent under section 34), after paragraph (g) insert— (ga) subject to subsection (3) of this section, any operations comprised in offshore generating activities carried out in accordance with a consent under section 36 of the Electricity Act 1989 granted after the commencement of section 102 of the Energy Act 2004;. ( ) After subsection (2) of that section insert— "(3) Operations in or as regards Scotland fall within paragraph (ga) of that subsection only if and to the extent that the Scottish Ministers by order made by statutory instrument so provide. (4) A statutory instrument containing an order under subsection (3) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the Scottish Parliament. (5) In that paragraph 'offshore generating activities' has the same meaning as in section 36B of the Electricity Act 1989."" 16 Clause 103, page 79, line 32, after "extension" insert "of a generating station"
Lord Triesman

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 16.

Clauses 100 and 101 on navigation were introduced by noble Lords on Report. We recognise the importance which the shipping and ports industries attach to including navigational matters in the Bill. At Second Reading in the other place, the Government gave an undertaking to retain the substance of these two clauses. However—I say it with great respect to those who drafted the clauses—in their original formulation, both clauses had a number of shortcomings which meant that they would be difficult to implement in practice and could create confusion which might well lead to litigation. The main shortcomings were, first, that Clause 100 did not make it clear who had the duty to ensure that installations and the safety zones around them do not interfere with the use of recognised sea lanes essential to international navigation. Secondly, this clause was almost the same as Article 60(7) of the United Nations Convention on the Law of the Sea, but there is no express link to that article in the clause. Thirdly, Clause 101 took no account of the devolved competence of Scottish Ministers.

Commons Amendments Nos. 11, 12, 14 and 15 address these shortcomings, while retaining the substance of Clauses 100 and 101. Amendments Nos. 11 and 12 remove Clauses 100 and 101 from the Bill. Amendment No. 14 places the duties in relation to navigation encompassed by Clauses 100 and 101 on the Secretary of State and Scottish Ministers who have responsibility for deciding whether to grant a Section 36 Electricity Act consent for the construction, extension and operation of a generating station. At the same time the Secretary of State must also take into account how she has exercised or will exercise her powers in respect of safety zones.

The Commons amendments go further than the strict requirements of the amendments made by your Lordships' House. Amendment No. 14 provides at subsection (2) for the Secretary of State and Scottish Ministers to have a general duty to have regard to the nature of any obstruction or danger to navigation in deciding whether to give a Section 36 consent for an offshore generating station.

It was clear from our debate on navigational issues that noble Lords—including the noble Lord, Lord Greenway, who I see in his place—were concerned to see a general reference to the safety of navigation in the Bill. We have listened to those concerns.

This consolidation of duties in respect of navigation into Section 36 of the Electricity Act 1989 has the benefit of ensuring that a comprehensive assessment of the impact of a proposed installation and any safety zone around it on navigation forms an integral part of the process of deciding whether to grant a consent for a generating station.

DTI Ministers will continue to work with the Department for Transport and more particularly the Maritime and Coastguard Agency, which has responsibility for marine safety in carrying out these duties. They have already built a close relationship with the MCA on the first round of offshore wind farm projects.

The effect of Amendment No. 15 is to disapply Section 34 of the Coast Protection Act 1949 where consent has been obtained for a generating station under Section 36 of the Electricity Act 1989 after Clause 100 of the Bill has been brought into force. Section 36B(2) to (6) do the same job as Section 34 of the Coast Protection Act, so it can be disapplied. With regard to Scotland, the amendment gives Scottish Ministers a power to make an order which disapplies Section 34 of the Coast Protection Act. Amendments Nos. 13 and 16 are purely drafting amendments designed to make it clear that the reference to "an extension" in 36A(1)(b) and Clause 103(2)(b) means an extension of a generating station. These amendments ensure that these references to an extension of a generating station tie in with the definition of offshore generating activities at Section 36B(7).

I commend the Commons amendments to the House. They address the issues which caused some concern in the House and are now in a form that would not give rise to litigation.

Moved, That the House do agree with the Commons in their Amendments Nos. 11 to 16.—"(Lord Triesman.)

Lord Greenway

My Lords, I warmly welcome these amendments which, as the Minister said, go slightly wider than the two clauses which were written into the Bill during its passage through this House. The noble Lord, Lord Higgins, who is otherwise engaged in the House at the moment, and I raised the concerns of the maritime industries in connection with the proposed siting of offshore wind farms in relation to the dangers of interfering with well recognised shipping lanes.

What the Government are now proposing meets nearly all our concerns. For that, I should like to express my gratitude, which I am sure will be echoed by my colleagues in the maritime industries. I do not think that it would be correct for me to thank the Minister on behalf of the noble Lord, Lord Higgins. Perhaps the noble Baroness on the Opposition Front Bench would do that.

Lord Dixon-Smith

My Lords, will the Minister give the House an assurance that, from here on, shipping will be able to miss maritime wind farms? At Question Time about six weeks ago, the noble Lord, Lord Whitty, said something to the effect that shipping could not possibly miss maritime wind farms.

Baroness Miller of Hendon

My Lords, as the noble Lord, Lord Greenway, said, on behalf of my noble friend Lord Higgins—on behalf of everybody, really—we welcome these changes to navigation which have been so well championed. We are grateful to the two noble Lords who spent so much time, in so many debates, discussing these proposals, and to the Government, for agreeing to what is before us.

Lord Triesman

My Lords, the intention of everybody in this matter has been that shipping should miss these installations. That seems a prudent step. I suspect that the best way to answer the question of the noble Lord, Lord Dixon-Smith, is to say that I am sure there will be some adjustments to the way in which navigation operates with respect to the installations. We now have a framework in which the obligations of all parties are well defined. I am very grateful to all noble Lords who have pressed the argument to this conclusion.

On Question, Motion agreed to.