The Newhaven Harbour Revision Order 2016

Procedure for giving, amending or revoking general directions

5.—(1) Subject to paragraph (7), if the Company proposes to give, amend or revoke a direction under article 4 it must-

(a) give notice in writing of the proposal to the Chamber of Shipping and the Royal Yachting Association and to such other persons or organisations as it considers appropriate for the purposes of the application of this provision (“the designated consultees”);

(b) consult with the designated consultees upon the proposal, including allowing a period of not less than 6 weeks from the date notice has been given by it to those consultees in accordance with sub-paragraph (a), for each of them to make written representations to the Company on the proposal;

(c) have regard to any representations made by the designated consultees during that consultation;

(d) give notice in writing to the designated consultees, following the consultation, as to whether the Company proposes to proceed with the proposal and, if so, specifying whether it is making any modifications to the proposal and its reasons for so doing; and

(e) if the Company proposes to proceed with the proposal and any of the designated consultees has made representations against the proposal, invite each designated consultee who has made such representations, within 28 days from the date of the notice given to him under sub-paragraph (d) or such longer period as may be specified in that notice, to confirm in writing if they maintain an objection to the proposal.

(2) Where the Company has complied with the requirements of paragraph (1) in relation to a proposal to give, amend or revoke a direction, they may proceed to give, amend or revoke the direction if-

(a) none of the designated consultees has made representations against the proposal;

(b) none of the designated consultees, having made representations against the proposal, gives notice to the Company under paragraph (1)(e) maintaining an objection to the proposal; or

(c) an objection to the proposal has been maintained but the requirements specified in paragraph (3) have been complied with.

(3) Where a designated consultee has given notice to the Company under paragraph (1)(e) that they maintain an objection to the proposal, the following procedure applies-

(a) the issue must be referred to an independent person (“the adjudicator”) to be agreed between the Company and each of the designated consultees maintaining an objection to the proposal (“the parties”) or, failing agreement, appointed on the application of any such party by the President of the London Maritime Arbitrators Association;

(b) the adjudicator must, so far as is reasonably practicable within three months of the referral, first provide a reasonable opportunity for each of the parties to make representations to or be heard by the adjudicator and then make a report in writing to the Company with findings and reasoned recommendations on the issue, a copy of which must also be provided by the adjudicator to the each of the other parties;

(c) the Company must decide whether to proceed with the proposal having regard to the report and recommendations contained in the report of the adjudicator (but shall not be bound to give effect to the recommendations) and, once they have so decided, it must give notice in writing to the designated consultees of its decision and of the reasons for that decision.

(4) If the Company wishes to proceed with the proposal in a form materially different from both the form notified to the designated consultees under paragraph (1)(d) and that recommended by the adjudicator under paragraph (3)(b), it must proceed, unless the designated consultees otherwise agree in writing, as if the proposal were a new proposal to which paragraph (1) applies.

(5) Except as otherwise provided for in paragraph (3), an adjudicator appointed under that paragraph may determine the procedure for the making of representations and the conduct of any hearing under that paragraph.

(6) The costs incurred by the adjudicator and by each of the parties on any referral under paragraph (3) are to be paid by such one or more of the parties to the referral as the adjudicator may direct.

(7) Subject to paragraph (8) paragraphs (1) to (6) do not apply where the Company proposes in the interests of navigational safety to give, amend or revoke a general direction applying to vessels or persons-

(a) in an emergency; or

(b) for the purpose of making temporary provision for an intended activity or operation in the harbour which is expected to commence less than 4 months after the Company is notified of or otherwise becomes aware of it and to last not more than 28 days and which the Company considers it appropriate to make, after taking into account other activities and operations in the harbour which may be affected by it.

(8) Where pursuant to paragraph (7) the Company proceeds to give, amend or revoke a general direction without complying with paragraphs (1) to (6), it must-

(a) give notice of the direction, amendment or revocation as soon as is practicable to those persons who would otherwise have been designated consultees had paragraph (1)(a) applied; and

(b) if the direction, or amendment is to continue in force for a period of more than 3 months from the date of that notice or the revoked direction is not intended to be restored within that period, apply the procedures specified in paragraphs (1) (b) to (e) and (2) to (6) to the question of the retention of the direction or amendment or revocation of the direction with the following modifications-

(i) a reference in those paragraphs to the ‘proposal’ is to be read as a reference to the direction, amendment or revocation;

(ii) in paragraph (1)(b), for “sub-paragraph (a)” substitute “paragraph (8)(a)”; and

(iii) a reference in those paragraphs to the Company proceeding with a proposal is to be read as a reference to the Company determining that the direction or amendment should remain in force or the revoked direction should not be restored.