1. In this Part of this Schedule—
“area of jurisdiction” means the area within the harbour limits, being the area in which the powers of the dock master may be exercised;
“authorised works” means any work, operation or activity that the undertaker is authorised by this Order to construct or carry out;
“environmental document” means—
the environment statement prepared for the purposes of the application for this Order together with any supplementary environmental information or other document so prepared by way of clarification or amplification of the environmental statement; and
any other document containing environmental information provided by the undertaker to the Secretary of State or the Statutory Conservancy and Navigation Authority or Trinity House for the purposes of any tidal works approval under article 37 (provision against danger to navigation), article 38 (lights on tidal works during construction) or article 39 (permanent lights on tidal works);
“plans” includes sections, drawings, specifications, calculations and method statements;
“the river” means the River Humber; and
“” means for the purposes of this Protective Provision Associated British Ports in its capacity as statutory conservancy and navigation authority for the river Humber (as successor to the Conservancy Commissioners established under the Humber Conservancy Act 1868) and including in its role as competent harbour authority and local lighthouse authority for its statutory area.
2.—(1) The provisions of this Part of this Schedule, unless otherwise agreed in writing between the undertaker and the Statutory Conservancy and Navigation Authority, have effect until the commencement of the operation of the authorised development for the protection of the Statutory Conservancy and Navigation Authority and the users of the river.
(2) For the purposes of this Part of this Schedule, the definition of “tidal work” is taken to include—
(a)any projection over the river outside the area of jurisdiction by booms, cranes and similar plant or machinery, whether or not situated within the area of jurisdiction; and
(b)any authorised work which affects the river or any functions of the Statutory Conservancy and Navigation Authority , whether or not that authorised work is within the limits of the Statutory Conservancy and Navigation Authority.
3.—(1) Prior to the commencement of the authorised development in the marine environment the undertaker must submit to the Statutory Conservancy and Navigation Authority plans and sections of the tidal works or operation and such further particulars as the Statutory Conservancy and Navigation Authority may, within 28 days from the day on which plans and sections are submitted under this sub-paragraph, reasonably require.
(2) Any approval of the Statutory Conservancy and Navigation Authority required under this paragraph shall be deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1) must not be unreasonably withheld but may be given subject to such reasonable requirements as the Statutory Conservancy and Navigation Authority may make for the protection of—
(a)traffic in, or the flow or regime of, the river;
(b)the use of its operational land or the river for the purposes of performing its functions; or
(c)the performance of any of its functions connected with environmental protection.
(3) Requirements made under sub-paragraph (2) may include conditions as to—
(a)the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the tidal work; and
(b)the expiry of the approval if the undertaker does not commence construction of the tidal work approved within a prescribed period.
(4) Before making a decision on any such approval, the Statutory Conservancy and Navigation Authority must take into account any opinion on plans and sections provided to it by the Environment Agency.
(5) Whenever the undertaker provides the Secretary of State with an environmental document it must at the same time send a copy to the Statutory Conservancy and Navigation Authority.
4. Any operations for the construction of any tidal work approved in accordance with this Order, once commenced, must be carried out by the undertaker without unnecessary delay and to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority so that river traffic, the flow or regime of the river and the exercise of the Statutory Conservancy and Navigation Authority’s functions do not suffer more interference than is reasonably practicable, and an authorised officer of the Statutory Conservancy and Navigation Authority is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.
5.—(1) The undertaker must not without the Consent of the Statutory Conservancy and Navigation Authority—
(a)deposit in or allow to fall or be washed into the river any gravel, soil or other material; or
(b)discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise.
(2) Any consent of the Statutory Conservancy and Navigation Authority under this paragraph must not be unreasonably withheld but may be given subject to such terms and conditions as the Statutory Conservancy and Navigation Authority may reasonably impose.
(3) Any such approval is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1).
(4) In its application to the discharge of water into the river, article 24 (discharge of water) has effect subject to the terms of any conditions attached to a consent given under this paragraph.
(5) The undertaker must not, in exercise of the powers conferred by article 24 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved as a tidal work under this Order or is otherwise approved in writing by the Statutory Conservancy and Navigation Authority.
6. If any pile, stump or other obstruction to navigation becomes exposed in the course of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker, as soon as reasonably practicable after the receipt of notice in writing from the Statutory Conservancy and Navigation Authority requiring such action, must remove it from the river or, if it is not reasonably practicable to remove it—
(a)cut the obstruction off at such level below the bed of the river as the Statutory Conservancy and Navigation Authority may reasonably direct; or
(b)take such other steps to make the obstruction safe as the Statutory Conservancy and Navigation Authority may reasonably require.
7. If—
(a)by reason of the construction of any tidal work it is reasonably necessary for the Statutory Conservancy and Navigation Authority to incur reasonable costs in temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Statutory Conservancy and Navigation Authority, or laying down and removing substituted moorings or buoys, or carrying out dredging operations for any such purpose, not being costs which it would have incurred for any other reason; and
(b)the Statutory Conservancy and Navigation Authority gives to the undertaker not less than 28 days’ notice of its intention to incur such costs, and takes into account any representations which the undertaker may make in response to the notice within 14 days of the receipt of the notice,
the undertaker must pay the costs reasonably so incurred by the Statutory Conservancy and Navigation Authority.
8. In addition to any requirement imposed under this Order the undertaker, at or near every tidal work, and any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level forming part of the River Humber), must exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Statutory Conservancy and Navigation Authority may from time to time reasonably require.
9. On completion of the construction of any part of a permanent authorised work, the undertaker must as soon as practicable remove—
(a)any temporary tidal work carried out only for the purposes of that part of the permanent work; and
(b)any materials, plant and equipment used for such construction,
and must make good the site to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority.
10.—(1) If any tidal work—
(a)is constructed otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph 3; or
(b)during construction gives rise to sedimentation, scouring, currents or wave action detrimental to traffic in, or the flow or regime of, the river,
then the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.
(2) The requirements that may be specified in a notice given under sub-paragraph (1) are—
(a)in the case of a tidal work to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—
(i)this Part of this Schedule; or
(ii)the condition that has been breached; or
(b)in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river.
(3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so, the Statutory Conservancy and Navigation Authority may in writing require the undertaker to—
(a)remove, alter or pull down the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to its former condition; or
(b)take such other action as the Statutory Conservancy and Navigation Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.
(4) If a tidal work gives rise to environmental impacts over and above those anticipated by any environmental document, the undertaker, in compliance with its duties under any enactment and, in particular, under section 48A of the Harbours Act 1964(1), must take such action as is necessary to prevent or mitigate those environmental impacts and in doing so must consult and seek to agree the necessary measures with the Statutory Conservancy and Navigation Authority.
(5) If the Statutory Conservancy and Navigation Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by any environmental document, the Statutory Conservancy and Navigation Authority must notify the undertaker of that environmental impact, the reasons why the Statutory Conservancy and Navigation Authority believes that the environmental impact is being caused by the tidal work and of measures that the Statutory Conservancy and Navigation Authority reasonably believes are necessary to counter or mitigate that environmental impact.
(6) The undertaker must implement the measures that the Statutory Conservancy and Navigation Authority has notified to the undertaker or must implement such other measures as the undertaker believes are necessary to counter the environmental impact identified, giving reasons to the Statutory Conservancy and Navigation Authority as to why it has implemented such other measures.
11.—(1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level) is abandoned or falls into decay, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.
(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—
(a)to repair and restore the work or part of it; or
(b)if the undertaker so elects, to remove the tidal work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.
(3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Statutory Conservancy and Navigation Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.
12.—(1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river without the agreement of the Statutory Conservancy and Navigation Authority and must ensure that access to such aids remains available during and following construction of any tidal works.
(2) The undertaker must provide at any tidal works, or must afford reasonable facilities at such works (including an electricity supply) for the Statutory Conservancy and Navigation Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation of users of the river in general as the Statutory Conservancy and Navigation Authority may deem necessary by reason of the construction of any tidal works, and must ensure that access remains available to apparatus during and following construction of such works.
(3) The undertaker must comply with the directions of the Statutory Conservancy and Navigation Authority from time to time with regard to the lighting on the tidal works or within the harbour, or the screening of such lighting, so as to ensure safe navigation on the river.
13.—(1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which—
(a)is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and
(b)for the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the Statutory Conservancy and Navigation Authority be removed or made good.
(2) The undertaker must either—
(a)pay to the Statutory Conservancy and Navigation Authority any additional expense to which the Statutory Conservancy and Navigation Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or
(b)carry out the necessary dredging at its own expense and subject to the prior approval of the Statutory Conservancy and Navigation Authority, such prior approval not to be unreasonably withheld or delayed;
and the reasonable expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Statutory Conservancy and Navigation Authority in carrying out surveys or studies in connection with the implementation of this paragraph.
14.—(1) The undertaker is responsible for and must make good to the Statutory Conservancy and Navigation Authority all reasonable financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Authority by reason of—
(a)the construction or operation of the authorised works or the failure of the authorised works;
(b)anything done in relation to a mooring or buoy under paragraph 8; or
(c)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works,
and the undertaker must indemnify the Statutory Conservancy and Navigation Authority from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.
(2) The fact that any act or thing may have been done—
(a)by the Statutory Conservancy and Navigation Authority on behalf of the undertaker; or
(b)by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Statutory Conservancy and Navigation Authority, or in a manner approved by the Statutory Conservancy and Navigation Authority, or under its supervision or the supervision of its duly authorised representative,
does not (if it was done or required without negligence on the part of the Statutory Conservancy and Navigation Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.
(3) The Statutory Conservancy and Navigation Authority must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand is to be made without the prior consent of the undertaker.
15.—(1) Subject to article 3 (disapplication and modification of legislative provisions) and this paragraph, any function of the undertaker or any officer of the undertaker, whether conferred by or under this Order or any other enactment, is subject to—
(a)any enactment relating to the Statutory Conservancy and Navigation Authority;
(b)any byelaw, direction or other requirement made by the Statutory Conservancy and Navigation Authority under any enactment; and
(c)any other exercise by the Statutory Conservancy and Navigation Authority of any function conferred by or under any enactment.
(2) The undertaker must not take any action in the river outside the area of jurisdiction under sections 57 and 65 of the 1847 Act as incorporated by article 4 (incorporation of the Act of 1847) except with the consent of the harbour master, which must not be unreasonably withheld.
(3) The dock master must not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 4 (incorporation of the 1847 Act), if to do so would conflict with a special direction given to the same vessel by the harbour master.
(4) The Statutory Conservancy and Navigation Authority must consult the undertaker before making any byelaw which directly applies to or which could directly affect the construction, operation or maintenance of the authorised development.
(5) The Statutory Conservancy and Navigation Authority must consult the undertaker before giving any general direction which directly affects the construction, operation or maintenance of the authorised development.
16.—(1) Before commencing marine commercial operations the undertaker must submit to the Statutory Conservancy and Navigation Authority for approval a written statement of proposed safe operating procedures for access to and egress from the authorised development.
(2) The undertaker must not submit the statement referred to in sub–paragraph (1) unless it has first consulted with the harbour master, the dock master for the Port of Immingham and the IOT Operators, as defined in Part 4 of this Schedule, and has had due regard to their representations.
(3) Prior to granting or refusing approval of the statement referred to in sub–paragraph (1), the Statutory Conservancy and Navigation Authority may carry out its own navigational risk assessment and may impose reasonable conditions on the approval for the purposes set out in paragraph 3(2)(a) to (c) of this Part of this Schedule.
(4) The undertaker must operate the authorised development only in accordance with such procedure as approved, including any approved alteration made from time to time.
17. The undertaker must consult the Statutory Conservancy and Navigation Authority before submitting any oil pollution emergency plan to the Maritime and Coastguard Agency and must ensure that any such plan is compatible with the Statutory Conservancy and Navigation Authority’s existing plan known as “Humber Clean” or such other plan as supersedes “Humber Clean”.