NATIONAL CONTINGENCY PLAN FOR MARINE POLLUTION FROM SHIPPING AND OFFSHORE INSTALLATIONS
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APPENDIX F
TEMPORARY EXCLUSION ZONES AND TEMPORARY DANGER AREAS
Introduction
F.1
This appendix contains information on the establishment and effect of temporary
exclusion zones and temporary danger areas.
Temporary exclusion zones
Legal
basis
F.2 Section 100A of the 1995 Act provides
powers to establish TEZs36.
Purpose
F.3
Section 100A enables the Secretary of State to declare a Temporary Exclusion
Zone (TEZ) to promote maritime safety or protecting the marine environment.
When can we designate a TEZ?
A
relevant casualty must be wrecked, damaged or in distress
F.4 Section
100A(1) provides power for the Secretary of State to designate a TEZ around a “ship, structure or other
thing”. It refers to this as the “relevant casualty”. (However, the use of the term “casualty” does
not add to the meaning or connotation of the powers). The phrase “ship, structure or other thing”
is very wide and could include, for example, offshore oil and gas installations.
F.5 The powers to designate a TEZ can only be exercised if the relevant casualty is “wrecked, damaged or in distress”. The 1995 Act contains no definition of the term “distress”. Legal advice suggests that we could consider a casualty to be “in distress” if there were an imminent risk of it being wrecked or damaged. However, the casualty must actually be in distress. There is no power to anticipate.
F.6 Whether or not a casualty is in danger is an objective matter. The decision is for the Secretary of State to make. It is not sufficient for the master or owner of the casualty to declare that the casualty is in danger.
The TEZ must prevent or reduce a threat
of significant harm
F.7 Section 100A(2) provides
that the Secretary of State must also be satisfied that the incident meets two further criteria.
F.8 First, it must appear that “significant harm” will or may occur as a (direct or indirect) result of the relevant casualty being wrecked, damaged or in distress. Significant37 harm means either:
F.9 Second, it must appear that restricting access to the area around the casualty by way of a TEZ would prevent or reduce significant harm or the risk of such harm.
Size, location and duration of TEZ
F.10
The Act does not specify the size, location or duration of the TEZ. However:
we can only exercise the powers to designate a TEZ if the relevant casualty is within the UK’s territorial
sea or pollution control zone;
Establishment
of a TEZ
F.11 The Secretary of State establishes
a TEZ by giving a direction. As soon as practicable, the Secretary of State should promulgate
the direction via a RCC or in such a manner as to bring it to the attention of persons it is likely
to affect. Within 24 hours of giving the direction, the Secretary of State must send a copy to
the International Maritime Organization.
Which ships may we exclude from a TEZ?
F.12
Section 100B(4) provides that a ship may enter or remain within a TEZ if:
F.13 Apart from these ships, section 100B(1) provides that no ship may enter or remain in a TEZ if the direction establishing the zone contains a particular statement. This is a statement to the effect that the purpose of the direction is to prevent or reduce significant pollution or the risk of such pollution within the UK’s territorial sea or pollution control zone.
F.14 Section 100B(3) provides that, if the direction does not contain such a statement, no ship may enter or remain in any parts of a TEZ that are within the UK’s territorial sea. UK ships may not enter or remain in any part of the zone38.
F.15 However, foreign ships may enter part of a TEZ within the UK’s territorial sea if they are exercising the right of transit passage through straits used for international navigation.39
Temporary danger area (TDA)
F.16
A marine incident may generate considerable aircraft movement in a limited area.
The RCC as an Emergency Controlling Authority (ECA) may seek to inhibit flight in the vicinity
of an emergency incident if it is considered essential for the safety of life or property and particularly
for the protection of those engaged in the response action. The RCC contacts the MOD Aeronautical
Co-ordination Centre (ARCC) and requests an Emergency Restriction of Flying Regulations. The ARCC
refers the request to the National Air Traffic Services, who have the authority to establish the restriction.
F.17 Depending on the nature of the incident the initial action is normally the establishment of a Temporary Danger Area (TDA) notified by Notice to Airmen (NOTAM). However, if a TDA fails to meet the objective or is deemed to be inappropriate for a particular incident, Emergency Restrictions of Flying Regulations may be introduced. The Regulations make it an offence to fly within the designated Temporary Restricted Area without permission of the appropriate ECA. Notification of the coming into force of the Emergency restriction of Flying Regulations and details of the Temporary Restricted Area are made by NOTAM and at the same time any previously established TDA is withdrawn.
F.18 The ECA is the only authority which may grant permission for aircraft to be flown within the notified airspace. Subject to overriding considerations of safety, flights by aircraft directly associated with the emergency are invariably given priority over those seeking to overfly for any other reason.
36 Section 1 of the 1997 Act inserted sections 100A and 100B. back 37 Sections 100A and 100B do not define the term “significant”. The question whether the harm is significant should be a subjective decision based on the circumstances of the incident. back 38 Section 100B(3) takes account of the fact that, in accordance with the law of the sea, if a TEZ is not established to prevent or reduce pollution, foreign ships may not be excluded from any part of the zone that lies outside territorial waters. back 39 Again, this a requirement of the international law of the sea (as reflected in Article 38(1) of UNCLOS). back |