The Cowes Harbour Revision Order 2012

Procedure for giving, amending or revoking general directions

12.—(1) Subject to paragraph (7), if the Commissioners propose to give, amend or revoke a general direction, they must—

(a) give notice in writing of the proposal to all member organisations of the advisory committee, the Chamber of Shipping and the Royal Yachting Association and to such other persons as they consider appropriate in respect of the proposal (in this article called “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 the Commissioners to those consultees for each of them to make written representations to the Commissioners 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 Commissioners propose to proceed with the proposal and, if so, specifying whether they are making any modifications to the proposal and their reasons for so doing; and

(e) if the Commissioners propose 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 he maintains an objection to the proposal.

(2) Where the Commissioners have complied with the requirements of paragraph (1) in relation to the proposal, they may proceed with the proposal if—

(a) none of the designated consultees have made representations against it; or

(b) none of the designated consultees, having made representations against it, give notice to the Commissioners 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 Commissioners under paragraph (1)(e) that he maintains an objection to the proposal—

(a) the issue must be referred to an independent person (“the adjudicator”) to be agreed between the parties to the reference, that is between the Commissioners and each of the designated consultees maintaining an objection to the proposal (“the parties”) or, failing agreement, appointed, on the application of the Commissioners or any such designated consultee, 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 he must make a report in writing to the Commissioners 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; and

(c) the Commissioners must decide whether to exercise the power to give, amend or revoke the direction 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, they must give notice in writing to the designated consultees of their decision and of the reasons for that decision.

(4) If the Commissioners wish to exercise the power to give or amend a direction 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), they must proceed, unless the designated consultees otherwise agree in writing, as if the proposal is a new proposal to which paragraph (1) applies.

(5) Except as provided 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 Commissioners propose in the interests of navigational safety to give, amend or revoke a direction under article 11—

(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 Commissioners are notified of, or otherwise becomes aware of, it and to last not more than 28 days and if the Commissioners consider it appropriate to make such provision, after taking into account other activities and operations in the harbour which may be affected by it.

(8) Where pursuant to paragraph (7) the Commissioners proceed to give, amend or revoke a direction without complying with paragraphs (1) to (6), they must—

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

(b) if the Commissioners propose that—

(i) the direction or the amendment of a direction is to continue in force after the expiry of the period of three months from the date of that notice; or

(ii) in the case of the revocation of a direction, the revoked direction is not to be given again after the expiry of that period,

apply procedures analogous to those specified in paragraphs (1)(b) to (e) and (2) to (6) to the proposal.

(9) In paragraph (1)(a) “the advisory committee” means the Commissioners’ Advisory Committee, appointed by the Commissioners in accordance with article 17 (advisory bodies) of the 2001 Order.