Statutory Instruments
HARBOURS, DOCKS, PIERS AND FERRIES
Made
18th March 1997
Coming into force
25th March 1997
Whereas, following the giving of directions by the Secretary of State for Transport under subsections (2) and (3) of section 10 of the Ports Act 1991(1), the Ipswich Port Authority have in pursuance of section 1 of that Act formed a company and have submitted to the Secretary of State for Transport a scheme prepared by them for the purposes of a transfer to the said company under section 2 of the said Act of the Authority’s property, rights, liabilities and functions;
And whereas the conditions mentioned in subsection (5) of section 9 of the said Act (as applying by virtue of subsection (5) of the said section 10) are satisfied in relation to the said scheme;
And whereas the Secretary of State for Transport has in pursuance of subsection (6) of the said section 9 considered the representations duly made to him before the end of the period allowed pursuant to subsection (4)(c) of that section and not withdrawn;
And whereas the Secretary of State for Transport, after consulting the said Authority in pursuance of paragraph (a) of the said subsection (6), has decided to confirm the said scheme with modifications;
And whereas a draft of this Order has been approved by a resolution of each House of Parliament:
Now, therefore, the Secretary of State for Transport, in exercise of the powers conferred by subsections (6) and (7) of the said section 9 (as applying by virtue of subsection (5) of the said section 10) and of all other powers enabling him in that behalf, hereby makes the following Order:—
1. This Order may be cited as the Ipswich Port Authority Transfer Scheme 1996 Confirmation Order 1997 and shall come into force on the seventh day after the day on which it is made.
2.—(1) The Ipswich Port Authority Transfer Scheme 1996 is hereby confirmed with modifications.
(2) The text of the said Scheme as so confirmed is set out in the Schedule hereto.
Signed by authority of the Secretary of State for Transport
Goschen
Parliamentary Under-Secretary of State,
Department of Transport
18th March 1997
Article 2(2)
The Ipswich Port Authority, being a relevant port authority within the meaning of section 1(3) of the Ports Act 1991, make this Scheme under Part I of that Act:—
1.—(1) This Scheme may be cited as the Ipswich Port Authority Transfer Scheme 1996.
(2) In this Scheme, unless the context otherwise requires—
“the 1991 Act” means the Ports Act 1991;
“the Authority” means the Ipswich Port Authority;
“the dissolution date” means the date on which the Authority are dissolved by an order made under section 7 of the 1991 Act;
“local statutory provision” means—
a provision contained in, or in a document made or issued under, any local Act (including an Act confirming a provisional order); or
a provision of any other instrument which is in the nature of a local enactment;
“the Successor Company” means the company specified in paragraph 3 below;
“the transfer date” means the date upon which this Scheme takes effect.
2. This Scheme is made with a view to securing the transfer to the Successor Company under section 2 of the 1991 Act of—
(a)all property, rights and liabilities of the Authority other than—
(i)the securities of the Successor Company held by the Authority;
(ii)any rights or liabilities of the Authority in respect of such securities held by a nominee of the Authority; and
(iii)any liability of the Authority incurred by virtue of section 19 of the 1991 Act in connection with any proposal for maximising participation by employees of the Successor Company in ownership of its equity share capital; and
(b)all functions conferred or imposed on the Authority by any provision contained in the Ipswich Dock Acts and Orders 1852 to 1986 or any other local statutory provision.
3. Ipswich Port Limited, a company formed in pursuance of section 1 of the 1991 Act and registered in England and Wales under the Companies Act 1985(2) with the number 3161994 which is a wholly-owned subsidiary of the Authority, is hereby specified to be the Authority’s successor company for the purposes of Part I of the 1991 Act.
4.—(1) If the transfer date falls before 1st January 1997, the statutory accounts prepared by the directors of the Successor Company in respect of a period which consists of or includes the whole or any part of the residual accounting period of the Authority shall deal with the affairs of the Authority during so much of the residual accounting period as falls within that period as well as, and as one with, the affairs of the Successor Company.
(2) In this paragraph—
(a)“statutory accounts” means, in relation to the Successor Company,—
(i)any accounts prepared by that company for the purposes of any provision of the Companies Act 1985, including group accounts; and
(ii)any statement of accounts prepared by that company under section 42 of the Harbours Act 1964(3);
(b)references to the residual accounting period of the Authority are references to the period beginning with 1st January 1996 and ending with the date of the day before the transfer date.
5.—(1) If the transfer date falls after 31st December 1996 and the financial year dealt with in the last statement of accounts prepared by the Authority under section 42 of the Harbours Act 1964 before the transfer date does not end on 31st December 1996, it shall be the duty of the Successor Company to prepare a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the Authority in respect of the financial year ending on 31st December 1996.
(2) The statement of accounts prepared under sub-paragraph (1) above shall be audited by auditors appointed by the Authority (or, if no such appointment has been made before the dissolution date, by the Successor Company), and a person shall not be qualified to be so appointed unless that person is eligible for appointment as a company auditor in accordance with section 25 of the Companies Act 1989.
(3) Subsections (2) to (9) of section 42 of the Harbours Act 1964 (accounts and reports relating to harbour activities and associated activities), and any regulations made under subsection (7) or (9) of that section, shall apply in relation to the preparation under sub-paragraph (1) above of the statement of accounts by the Successor Company in respect of the financial year ending on 31st December 1996 and to the statement of accounts so prepared as they apply in relation to the preparation under that section of a statement of accounts by a statutory harbour undertaker in respect of that period and to the statement of accounts so prepared.
6.—(1) If the transfer date falls after 31st December 1996, the statutory accounts prepared by the directors of the Successor Company in respect of a period which consists of or includes the whole or any part of the residual accounting period of the Authority shall deal with the affairs of the Authority during so much of the residual accounting period as falls within that period as well as, and as one with, the affairs of the Successor Company.
(2) In this paragraph—
(a)“statutory accounts” means, in relation to the Successor Company,—
(i)any accounts prepared by that company for the purposes of any provision of the Companies Act 1985 including group accounts; and
(ii)any statement of accounts prepared by that company under section 42 of the Harbours Act 1964;
(b)references to the residual accounting period of the Authority are references to the period beginning with 1st January 1997 and ending with the date before the transfer date.
7.—(1) It shall be the duty of the Authority—
(a)to keep proper accounts in respect of the period beginning with the transfer date and ending immediately before the dissolution date and proper records in relation to the accounts; and
(b)to prepare in respect of each new accounting period a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the Authority.
(2) A statement of accounts of the Authority prepared in pursuance of sub-paragraph (1)(b) above shall be audited by auditors appointed by the Authority, and a person shall not be qualified to be so appointed unless that person is eligible for appointment as a company auditor in accordance with section 25 of the Companies Act 1989.
(3) The Authority shall send to the Secretary of State a copy of the statement of accounts prepared in pursuance of sub-paragraph (1)(b) above together with a copy of the auditor’s report on it.
(4) In this paragraph “new accounting period” means—
(a)a period of twelve months beginning with the transfer date or with an anniversary of that date; and
(b)any period of less than twelve months which begins with the transfer date or an anniversary of that date and ends immediately before the dissolution date.
8.—(1) For the purposes of any statutory accounts of the Successor Company, the value of any asset and the amount of any liability transferred to the Successor Company under section 2 or 7 of the 1991 Act shall be taken to be the pre-transfer value of that asset or (as the case may be) the pre-transfer amount of that liability.
(2) An amount equal to the accumulated realised profits of the Authority at the transfer date shall be treated as accumulated realised profits of the Successor Company.
(3) Subject to sub-paragraphs (1) and (2) above, for the purposes of any statutory accounts of the Successor Company the amount to be included in respect of any item shall be determined as if anything done by the Authority (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the Successor Company.
(4) For the purposes of sub-paragraph (1) above the pre-transfer value of an asset or (as the case may be) the pre-transfer amount of a liability is—
(a)in the case of an asset or liability transferred under section 2 of the 1991 Act, the value or (as the case may be) the amount which would have been assigned to that asset or liability for the purposes of the last statement of accounts prepared by the Authority under section 42 of the Harbours Act 1964 before the transfer date if the accounting year of the Authority dealt with in that statement of accounts had ended immediately before the transfer date; and
(b)in the case of an asset or liability transferred under section 7 of the 1991 Act, the value or (as the case may be) the amount assigned to that asset or liability for the purposes of the last statement of accounts prepared by the Authority in pursuance of paragraph 7 above.
(5) Any reference in this paragraph to the statutory accounts of the Successor Company is a reference to—
(a)any accounts prepared by that company for the purposes of any provision of the Companies Act 1985, including group accounts; and
(b)any statement of accounts prepared by the Successor Company under section 42 of the Harbours Act 1964.
9.—(1) Where it is proposed to declare a distribution during the accounting reference period of the Successor Company which includes the transfer date, or before any accounts are laid or delivered to the registrar of companies in respect of that period, sections 270 to 276 of the Companies Act 1985(4) (relevant accounts for determining whether a distribution is lawful) shall apply in relation to the distribution as if—
(a)such accounts as are mentioned in sub-paragraph (2) below were accounts relevant under section 270; and
(b)references in section 273 to initial accounts included references to any such accounts.
(2) The accounts referred to in sub-paragraph (1)(a) and (b) above are such accounts as, on the assumptions stated in subparagraph (3) below, would have been prepared under Part VII of the Companies Act 1985(5) in respect of the relevant year.
(3) Those assumptions are—
(a)that the relevant year had been a financial year of the Successor Company;
(b)that the transfer effected by section 2(2) of the 1991 Act had been a vesting of all the property, rights, liabilities and functions to which the Authority were entitled or subject immediately before the beginning of the relevant year and had been effected immediately after the beginning of that year;
(c)that the value of any asset and the amount of any liability of the Authority transferred to the Successor Company by virtue of the said section 2(2) had been the value or (as the case may be) the amount assigned to that asset or liability for the purposes of the statement of accounts prepared by the Authority in respect of their financial year immediately preceding the relevant year;
(d)that any securities of the Successor Company issued or allotted on any terms before the declaration of the distribution had been issued or allotted on those terms before the end of the relevant year; and
(e)such other assumptions (if any) as may appear to the directors of the Successor Company to be necessary or expedient for the purposes of this paragraph.
(4) For the purposes of such accounts as are mentioned in subparagraph (2) above the amount to be included in respect of any item shall be determined as if anything done by the Authority (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the Successor Company.
Accordingly (but without prejudice to the generality of the preceding provision) the amount to be included in any reserves of the Successor Company as representing its accumulated realised profits shall be determined as if any profits realised and retained by the Authority had been realised and retained by the Successor Company.
(5) Any such accounts shall not be regarded as statutory accounts for the purposes of paragraph 4, 6 or 8 above.
(6) In this paragraph—
“the relevant year” means the last financial year of the Authority ending before the transfer date; and
“financial year” in relation to the Authority, means any period of twelve months ending with 31st December.
10. The transfer effected by section 2(2) of the 1991 Act shall not affect any entitlement to benefits or other rights under any deeds or other documents constituting a scheme established by the Authority for the payment of pensions, lump sums, gratuities or other like benefits to or in respect of employees or former employees of the Authority; and, accordingly, for the purposes of any such deed or other document (as it has effect by virtue of section 2(2) of, and paragraphs 1 and 2 of Schedule 1 to, that Act in relation to employment with the Successor Company)—
(a)any period of employment with the Authority shall count as employment with the Successor Company; and
(b)any decision taken, or other thing done, before the transfer date by the Authority shall be treated as having been taken or done by the Successor Company.
11.—(1) For the avoidance of doubt it is hereby declared that, notwithstanding section 2(2) of the 1991 Act and paragraphs 1 and 2 of Schedule 1 to that Act, the provisions of articles 4 to 7 of and Schedule 1 to the Ipswich Port Authority Order 1973(6), sections 5(3) and 39 of the Ipswich Dock Act 1913(7), and sections 28 and 30 of the Ipswich Dock Act 1852(8) (all which make provision as respects the constitution of the Authority) shall have no effect in relation to the Successor Company.
(2) On or at any time after the transfer date the Secretary of State may, if he thinks fit, appoint one or more persons to be members of the Authority in addition to the members appointed in pursuance of the Ipswich Port Authority Order 1973, provided that the number of persons appointed in pursuance of this sub-paragraph and in office for the time being shall not be more than four.
(3) A person appointed in pursuance of sub-paragraph (2) above shall come into office on such date and, subject to article 6 of the Ipswich Port Authority Order 1973, shall continue in office for such period as the Secretary of State may specify when he makes the appointment.
12.—(1) On the transfer date the enactments specified in Part I of the Schedule to this Scheme shall be repealed to the extent specified in the third column of that Schedule.
(2) On the dissolution date the enactments specified in Part II of that Schedule shall be repealed to the extent specified in the third column of that Schedule.
(3) The repeal by subparagraphs (1) and (2) above of sections 79 to 119 of the Ipswich Dock Act 1913, section 24 of the Ipswich Dock Act 1918(9), and sections 37 and 40 to 54 of the Ipswich Port Authority Act 1971(10) providing for stock, mortgages, debentures or other securities created, issued or granted by the Authority or their predecessors shall not apply in relation to stock, mortgages, debentures or other securities created by such provisions prior to the transfer date.
Paragraphs 12(1) and (2)
| Chapter | Short Title | Extent of Repeal |
|---|---|---|
| 1852 c.cxvi. | Ipswich Dock Act 1852. | Section 88. |
| 1877 c.ccxvi. | Ipswich Dock Act 1877. | Section 30. |
| 1913 c.cvi. | Ipswich Dock Act 1913. | Sections 40 and 41. |
| Section 74. | ||
| Sections 79 to 119. | ||
| Section 127. | ||
| Schedules 2 and 3. | ||
| 1918 c.lvii. | Ipswich Dock Act 1918. | Section 24. |
| Section 28. | ||
| 1950 c.xlv. | Ipswich Dock Act 1950. | Section 11. |
| Sections 21 and 22. | ||
| 1971 c.xiv. | Ipswich Dock Act 1971. | Section 37. |
| Sections 40 to 54. | ||
| 1986 c.xv. | Ipswich Port Authority Act 1986. | Sections 4 to 6. |
| Sections 7(2)(c) to (e) and (3). |
| Chapter or Number | Short Title | Extent of Repeal |
|---|---|---|
| 1852 c.cxvi. | Ipswich Dock Act 1852. | Section 28. |
| Section 30. | ||
| Section 74. | ||
| 1877 c.ccxvi. | Ipswich Dock Act 1877. | Section 62. |
| 1913 c.cvi. | Ipswich Dock Act 1913. | Section 5(3). |
| Section 37. | ||
| Section 39. | ||
| Schedule 1. | ||
| S.I. 1973/2136. | Ipswich Port Authority Order 1973. | The whole Order. |
| S.I. 1975/1272. | Ipswich Port Authority Order 1975. | The whole Order. |
IN WITNESS whereof the Ipswich Port Authority have caused their Common Seal to be hereunto affixed 28th February 1996
L.S.
David A Howell
Chief Executive
D W Rumsey
Executive Member
(This note is not part of the Order)
This Order confirms the Ipswich Port Authority Transfer Scheme 1996, as modified by the Secretary of State for Transport.
The Scheme was made by the Ipswich Port Authority following a direction given by the Secretary of State under section 10(3) of the Ports Act 1991. By virtue of section 9 of the Act the Scheme takes effect on the date on which the Order comes into force. On that date all property, rights and liabilities of the Authority (except as stated in paragraph 2(a) of the Scheme) and all functions conferred or imposed on the Authority by any local statutory provision are transferred to and by virtue of section 2 of the Act become property, rights and liabilities or (as the case may be) functions of the successor company specified by paragraph 3 of the Scheme.
1964 c. 40; section 42 was substituted by the Transport Act 1981 (c. 56), Schedule 6, paragraph 10, and amended by the Companies Act 1989 (c. 40), Schedule 10, paragraph 26.
Sections 271, 272, 273 and 276 were amended by the Companies Act 1989, Schedule 10, paragraphs 4, 5, 6 and 7.
Part VII consists of sections 221 to 262A, which were inserted by the Companies Act 1989, sections 2 to 22.
S.I. 1973/2136.