PART 4HARBOURS REGULATION
Aids to navigation19
1
In addition to its powers under section 201 of the Act of 1995 (powers of harbour authorities as local lighthouse authorities) but subject to obtaining any necessary interest in or over land, the Council may erect or place, alter, discontinue or remove aids to navigation in any place adjacent to the harbours.
2
The Council must not exercise the powers of paragraph (1) without the approval of Trinity House.
Repair of landing places, etc.20
1
In this article, “relevant feature” means any landing place, jetty, wall, pontoon, pile, embankment, bridge, structure or other work in the harbours or on land immediately adjoining the waters of the harbours other than one under the control or management of the Council.
2
The Council may by notice require the owner, lessee or occupier of a relevant feature which in the opinion of the Council is, or is likely to become, by reason of its insecure condition or want of repair—
a
dangerous to persons or vessels using the harbours;
b
a hindrance to the navigation of the harbours,
to remedy its condition to the Council’s reasonable satisfaction within a reasonable time, not being less than 21 days, specified in the notice.
3
If a person to whom notice is given under this article fails without reasonable excuse to comply with the notice within the time stated in the notice or such other time as the Secretary of State on an appeal may substitute therefore—
a
that person shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale; and
b
the Council may carry out the work required by the notice and may recover the expenses of so doing from the person on whom the notice was served.
4
A notice under this article must have annexed to it a copy of this article.
5
A person aggrieved by a notice served by the Council under this article may, during the period of 21 days beginning with the date on which the notice was served, appeal to the Secretary of State against the notice.
6
An appeal under paragraph (5) must be made by notice in writing stating the grounds of the appeal.
7
A person who appeals under paragraph (5) must give to the Council notice of the appeal accompanied by a copy of the statement of appeal; and the Council shall, within 21 days of receipt of the notice, be entitled to furnish to the Secretary of State its observations on the appeal.
8
On an appeal under paragraph (5), the Secretary of State shall either quash the notice, modify its requirements or dismiss the appeal.
9
In this article “owner”, “lessee” and “occupier”, in relation to a relevant feature, means the person who was the “owner”, “lessee” or “occupier” of the relevant feature at the date the notice is served, or if the “owner”, “lessee” or “occupier” of the relevant feature is not readily identifiable, the “owner”, “lessee” or “occupier” of the land on which the relevant feature is situated at the date the notice is served.
Restriction of works and dredging21
1
Subject to paragraph (3), no person other than the Council shall, on, under, in or over tidal waters or land below the level of high water in the harbours—
a
construct, alter, renew or extend any works, unless that person is licensed to do so by a works licence and except upon the terms and conditions, if any, upon which the licence is granted and in accordance with plans, sections and particulars approved under article 23 (licensing of works);
b
dredge, unless that person is licensed to do so by a dredging licence and except upon the terms and conditions, if any, upon which the licence is granted and in accordance with the plans, sections and particulars approved under article 24 (licence to dredge).
2
The Council may by notice require a person who contravenes this article to remove, abate or rectify, within a reasonable time specified in the notice, any work, operation or omission to which the contravention relates and to restore the site thereof to its former condition; and if that person fails to comply with the notice, the Council may carry out the works so required and may recover from that person the cost of so doing.
3
Nothing in this article shall apply to—
a
any operations or works specifically authorised by any enactment;
b
any operations or works of a statutory undertaker;
c
any operations or works authorised by a moorings licence granted under article 52 (power to licence moorings).
4
Any person who without reasonable excuse contravenes this article shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Control of certain operations and works of statutory undertakers22
1
This article applies to any operations or works in the harbours of a statutory undertaker on, under, in or over tidal waters or land below the level of high water, not being operations or works which are specifically authorised by an enactment.
2
Subject to paragraph (3), a statutory undertaker must not carry out any operations or works to which this article applies unless it has given notice of its intention to do so to the Council and has supplied the Council with such particulars as it may reasonably require.
3
Where, in an emergency, it is impracticable to give notice as required by paragraph (2), the statutory undertaker must inform the Council of the operations or works as soon as reasonably practicable.
4
Any operations or works to which this article applies shall be carried out subject to any directions which may from time to time be given by the Council to the statutory undertaker, being directions for the avoidance of danger and the prevention, so far as possible, of interference with navigation in the carrying out of such operations or works.
5
Any person who, without reasonable excuse, contravenes this article shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Licensing of works23
1
The Council may upon such terms and conditions as it thinks fit grant to any person a licence to construct, alter, renew or extend any works in the harbours on, under, in or over tidal waters or land below the level of high water, notwithstanding that the works as constructed, altered, renewed, or extended, interfere with the public right of navigation or any other public right.
2
An application for a works licence must be made in writing to the Council and must—
a
be accompanied by plans, sections and particulars of the works to which the application relates; and
b
specify whether the applicant holds such rights in, under or over land as are necessary to enable the applicant to enjoy the benefits of the licence and, if not, the action taken to enable the applicant to obtain such rights if the licence is granted,
and, in granting a licence, the Council may require modifications in the plans, sections and particulars so submitted.
3
The Council may require an applicant for a works licence, on making the application, to pay a reasonable fee in respect of the administrative expenses of dealing with the application.
4
As a condition of the granting of a licence, the Council may require a licensee, being an applicant to whom a licence has been granted or the applicant’s successor, where works are to be constructed in accordance with the licence, to pay such reasonable fees in respect of the Council’s administrative expenses and overheads in supervising or inspecting where necessary the construction or maintenance of the works.
5
Where the Council refuses to grant a works licence which has been applied for it must give reasons in writing for its refusal.
6
Where the Council grants a works licence upon terms or conditions or requires any modification in the plans and particulars, it must give reasons in writing for the terms and conditions imposed or the modifications required.
7
If within 16 weeks from the receipt of the application under paragraph (2) the Council does not grant a works licence, it shall be deemed to have refused the application.
8
When carrying out operations pursuant to a works licence, the holder of the licence must not—
a
interfere with, damage or otherwise injuriously affect any apparatus belonging to or maintained by any statutory undertaker;
b
do anything which obstructs or impedes any work relating to the inspection or repair of any such apparatus,
without the consent of the statutory undertaker concerned.
Licence to dredge24
1
The Council may upon such terms and conditions as it thinks fit grant to any person a licence to dredge in any part of the harbours.
2
An application for a dredging licence must be made in writing to the Council and must be accompanied by plans, sections and particulars defining the nature, extent and manner of the operations to be carried out in the exercise of the powers granted by the licence, and in granting any such licence the Council may require modifications in the plans, sections and particulars so submitted.
3
Paragraphs (3) to (8) of article 23 (licensing of works) shall apply in relation to a dredging licence as they apply in relation to a works licence.
4
Any materials, other than wreck within the meaning of Part IX of the Act of 1995 (salvage and wreck), taken up or collected by means of dredging pursuant to a dredging licence—
a
shall be the property of the holder of the licence; and
b
the holder of the licence may use, sell or otherwise dispose of or remove or deposit the materials as they think fit provided that no such material shall be laid down or deposited in any place within the harbours below the level of high water except—
i
in such positions as may be approved by the Council, and
ii
subject to such conditions as may be imposed by the Council.
5
If it appears to the holder of the dredging licence that the Council has unreasonably withheld or refused its approval under paragraph (4) or that any condition imposed by the Council under that paragraph is unreasonable, that person may within 28 days from the date on which the Council notifies the applicant of its decision, appeal to the Secretary of State whose decision shall be binding upon the parties.
6
Paragraphs (2) to (5) of article 25 (appeals in respect of works or dredging licence) shall apply in relation to any appeal made under paragraph (5).
Appeals in respect of works or dredging licence25
1
An applicant for a works licence or a dredging licence who is aggrieved by—
a
a refusal of the Council to grant a licence;
b
any terms or conditions subject to which the licence is granted;
c
any modifications required by the Council in the plans, sections and particulars submitted by the applicant,
may, within 28 days from the date on which the Council notifies the applicant of its decision or the date on which the Council is, under article 23(7), deemed to have refused the application, appeal to the Secretary of State.
2
An appeal under paragraph (1) must be made by notice in writing stating the grounds of the appeal.
3
The appellant must send to the Council a copy of the notice of the appeal; and the Council may, within 28 days of the receipt of the notice, furnish to the Secretary of State its observations on the appeal.
4
The Secretary of State may confirm, vary or revoke the decision appealed against and may make such consequential amendments as the Secretary of State may specify.
5
The Secretary of State may direct the Council to give effect to the decision, and the Council must forthwith comply with any direction given.
Obstruction of works26
Any person who intentionally obstructs any person acting under the authority of the Council in setting out the lines of, or in construction of any works authorised by any enactment, or who interferes with, moves or removes any pole, stake, station point or bench mark established for the purposes of such setting out, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Parking places and related facilities27
The Council may provide facilities within the harbours for the parking of vehicles and for that purpose may erect barricades or fencing with related offices, waiting rooms and other conveniences and may make reasonable charges for the use of such facilities.
Removal of vehicles and vessels28
1
If a vehicle or vessel is left within the harbours without permission of the Council—
a
in any place where it is likely to obstruct or interfere with the use of the harbours;
b
in any part of the harbours where the parking of vehicles or leaving of vessels is prohibited by notice erected by the Council,
the Council may, at the risk of the owner, remove the vehicle or vessel or cause it to be removed.
2
Any notice erected under paragraph 1(b) must be conspicuously posted in or close to the place to which it relates.
3
Where the Council in exercise of the powers of this article remove a vehicle or vessel or cause it to be removed it must as soon as practicable report that fact to the police.
4
The reasonable expenses of and incidental to the removal of a vehicle or vessel under this article shall be recoverable from any person responsible.
5
For the purposes of paragraph (4) “person responsible” means—
a
the owner of the vehicle or vessel at the time when it was put in the place from which it was removed under paragraph (1);
b
any person by whom the vehicle or vessel was put in that place.
6
If the Council in the exercise of the powers conferred by this article remove a vehicle to a place not readily visible from the place whence it is so removed the Council must, as soon as it is reasonably practicable to do so, send to the person for the time being registered as the keeper of the vehicle for the purposes of the Road Vehicles (Registration and Licensing) Regulations 200216 or any other regulations having the like effect for the time being in force—
a
at that person’s last known address;
b
the person’s registered address; or
c
the address where the vehicle is ordinarily kept,
notice that it has exercised the powers of the article and of the place to which the vehicle has been removed.
7
A notice stating the general effect of paragraph (1) must be displayed in a prominent position at each place where a road accessible to vehicles enters any part of the harbours.
Power to make byelaws29
1
The Council may make such byelaws as it thinks fit for the efficient management and regulation of the harbours.
2
Without limitation to the scope of paragraph (1), the Council may make byelaws under this article for any of the purposes set out in Schedule 3 (purposes for which byelaws may be made) but such byelaws shall not come into operation until the same have received the confirmation of the Secretary of State which shall be sufficient for all purposes.
3
In this article “signals” includes sound signals.
4
Byelaws made under this article may—
a
provide for imposing upon a person offending against them, or against any condition, requirement or direction imposed, made or given thereunder, a fine not exceeding level 4 on the standard scale on summary conviction;
b
relate to the whole of the harbours or to any part thereof;
c
make different provisions for different parts of the harbours or in relation to different classes of vessels or vehicles;
d
otherwise make different provision for different circumstances.
5
Where a person is charged with an offence against a byelaw in force under this article, it shall be a defence for the person to prove that—
a
they took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence;
b
they had a reasonable excuse for their act or failure to act;
c
the offence was not caused or facilitated by any act or neglect on their part or on the part of any person engaged or employed by them and that all reasonable steps were taken to prevent the commission of the offence.
6
The powers in the article are in addition to the powers conferred by section 83 of the Act of 1847 (byelaws may be made for all or any of the purposes herein named).
Confirmation of byelaws30
1
The provisions contained in subsections (3) to (8) of section 236 (procedure etc. for byelaws) and section 238 (evidence of byelaws) of the Local Government Act 197217 shall apply to all byelaws made after the coming into force of this Order, by the Council under this Order or section 83 of the Act of 1847 (byelaws may be made for all or any of the purposes herein named).
2
In its application to byelaws made under this Order or section 83 of the Act of 1847 (byelaws may be made for all or any of the purposes herein named), section 236 (procedure etc. for byelaws) shall have effect, subject to paragraph (3), as if after the word “confirm” in subsection 236(7) in the first place where that word occurs there were inserted the words “with or without modification”
.
3
Where the confirming authority proposes to make a modification which appears to the confirming authority to be substantial, then—
a
the confirming authority must inform the Council and require it to take any steps the confirming authority thinks necessary for informing persons likely to be concerned with that modification;
b
the confirming authority must not confirm the byelaws until there has elapsed such period as the confirming authority thinks reasonable for the Council and other persons who have been informed of the proposed modifications to consider and comment on it.
4
The confirming authority for the purposes of this article and of section 236 (procedure etc. for byelaws) in its application to byelaws made under this Order or section 83 of the Act of 1847 (byelaws may be made for all or any of the purposes herein named) shall be the Secretary of State.
Power to make general directions as to use of the harbours, etc.31
1
The Council may, in accordance with the requirements of article 32 (procedure for giving, amending or revoking general directions), give a direction for—
a
the ease, convenience or safety of navigation;
b
the safety of persons;
c
the protection of property, flora or fauna;
d
the ease, convenience or safety of harbour operations ashore,
within the harbours.
2
A direction under this article may apply—
a
to all vessels or to a class of vessel;
b
to all vehicles or to a class of vehicle;
c
to persons designated in the direction;
d
to the whole of the harbours or to a part;
e
at all times or at certain times or at certain states of the tide,
and every direction must specify the extent of its application including its geographical extent in relation to the matters referred to in sub-paragraphs (a), (b), (c), (d) and (e).
3
The Council may amend or revoke a direction given under paragraph (1).
4
The Council must keep and make available for inspection at each harbour office and on its harbours website a public register of all in force general directions18.
Procedure for giving, amending or revoking general directions32
1
Subject to paragraph (7), if the Council proposes to give, amend or revoke a general direction, it must—
a
give notice in writing of the proposal and a plan of the area over which the proposal applies to the “designated consultees” them being—
i
the Chamber of Shipping,
ii
the Royal Yachting Association,
iii
the Cornwall Harbours User Group, and
iv
to such other persons or organisations as it considers appropriate for the purposes of the application of this provision,
b
place a notice of the proposal on the Council’s harbours website and in prominent locations at each harbour to which the proposal applies on the same date as the notice given in accordance with sub-paragraph (a) and keep that notice on display for a minimum of 6 weeks;
c
consult with the designated consultees upon the proposal and allow a period of not less than 6 weeks beginning with the date of the notices given in accordance with sub-paragraphs (a) and (b) for written representations to be made by the designated consultees and any other persons to the Council regarding the proposal;
d
have regard to all representations made during consultation;
e
give notice in writing to the designated consultees and to those other persons that have provided a consultation response, following consultation as to whether the Council 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
f
if the Council proposes to proceed with the proposal and a designated consultee has made representations against the proposal, invite that designated consultee to confirm in writing whether they maintain their objection to the proposal within 28 days beginning with the date of the notice given in accordance with sub-paragraph (e), or such longer period as the Council may specify.
2
Where the Council has complied with paragraph (1), it may proceed to give, amend or revoke a general direction if—
a
none of the designated consultees have made representations against the proposal;
b
none of the designated consultees which made representations against the proposal have confirmed in writing that they are maintaining their objection to the proposal in accordance with paragraph (1)(f); or
c
where a designated consultee has maintained an objection in accordance with paragraph (1)(f), the requirements of paragraph (3) have been complied with.
3
Where a designated consultee has confirmed in writing to the Council that they maintain their objection to a proposal—
a
the issue must be referred to an independent person (“the adjudicator”) appointed—
i
by agreement between the Council and each designated consultee maintaining an objection in accordance with paragraph (1)(f) (“the parties”), or
ii
failing agreement, by the President of the London Maritime Arbitrators Association on the application of any of the parties,
b
so far as is reasonably practicable within 12 weeks beginning with the date of the referral, the adjudicator must—
i
provide a reasonable opportunity for the parties to make representations to or be heard by the adjudicator at a hearing, and
ii
make a written report to the parties with findings and recommendations on the issue, and
c
the Council must decide whether to exercise the power to give, amend or revoke the general direction having regard to the adjudicator’s report (but it is not bound to give effect to any recommendations) and, once it has decided, must give notice in writing to the designated consultees and to any other person that provided a consultation response of its decision and the reasons for that decision.
4
Except as otherwise provided for in paragraph (3), the adjudicator may determine the procedure for the making of representations and the conduct of any hearing.
5
The costs incurred by the adjudicator and the parties from a referral under paragraph (3) are to be paid by one or more of the parties as the adjudicator may direct.
6
If the Council wishes to exercise the power to give, amend or revoke a general direction in a form materially different from both the form notified to the designated consultees under paragraph (1)(e), and where paragraph (3) applies, the form recommended by the adjudicator under paragraph (3)(b), it must proceed, as if the proposal is a new proposal to which paragraph (1) applies.
7
Paragraphs (1) to (6) do not apply where in the interests of navigational safety, or safety of persons the Council proposes to give or amend a general direction—
a
in an emergency; or
b
relating to an intended activity or operation within the harbours if—
i
the intended activity or operation is expected to commence within 16 weeks of the Council having been notified or otherwise becoming aware of the intended activity or operation,
ii
the intended activity or operation is to last less than 28 days, and
iii
the Council considers that the giving or amending of a general direction in relation to the intended activity or operation is required, taking into account other activities or operations in the harbours which may be affected.
8
Where the Council proceeds to give or amend a general direction in accordance with paragraph (7), it must—
a
as soon as is reasonably practicable give notice of the direction or amendment to those persons who would have been designated consultees had paragraph (1)(a) applied; and
b
if the direction or amendment is intended to continue in force for more than 12 weeks, apply the procedure under paragraphs (1)(c) to (f) and (2) to (6) to the direction or amendment with the following modifications—
i
a reference to the ‘proposal’ in those paragraphs is to be read as a reference to the direction or amendment,
ii
in paragraph (1)(c), for “sub-paragraphs (a) and (b)” substitute “paragraph (8)(a)”
, and
iii
a reference to the Council ‘proceeding’ with a proposal is to be read as a reference to the Council determining that the direction or amendment should remain in force.
Publication of general directions33
1
Subject to paragraph (4), the Council must publish a notice of the giving, amendment or revocation of a general direction as soon as reasonably practicable on one occasion in a newspaper circulating in the area of the harbours to which the proposal relates and electronically on the Council’s harbours website for the period of 28 days beginning with the date of publication of the notice in the newspaper.
2
The notice must state a place at which copies of the general direction may be inspected.
3
The Council must display notices of general directions that apply to harbour premises at prominent locations within the harbours.
4
In an emergency, the Council may give notice of the giving or amendment of a general direction in any manner which it considers to be appropriate.
Special directions34
1
The harbour master may give a special direction in respect of a vessel anywhere in the harbours for any of the following purposes—
a
requiring a person to comply with a requirement made in or under a general direction;
b
regulating or requiring the movement, anchorage, berthing, mooring or unmooring of the vessel;
c
regulating the loading, discharging, storing and safeguarding of its cargo, fuel, water or stores, and the dispatch of its business at the harbour premises;
d
specifying the precautions to be taken in respect of apparatus, machinery and equipment;
e
prohibiting, extinguishing, or restricting the use of fires or lights;
f
regulating the use of ballast;
g
requiring the removal from any part of the harbours if the vessel—
i
is on fire,
ii
is in such condition as to be liable to become immobilised or waterlogged, to sink or to constitute a danger to life or property,
iii
is making an unlawful use of the harbours or interfering with the reasonable use or enjoyment of the harbours by other vessels or persons or the dispatch of business in the harbours,
iv
needs to be removed to enable maintenance or repair work to be carried out to the harbours,
h
requiring the vessel to be removed to a place outside the harbours if such removal is considered by the harbour master to be necessary in order to avoid danger to life (including wildlife) or to property.
2
A special direction relating to a vessel must specify a particular person or persons to whom the direction is addressed, either by name or by a description sufficient to enable the person or persons in question to be identified.
3
A special direction may be given in any manner considered by the harbour master to be appropriate.
4
The harbour master may revoke or amend a special direction.
Failure to comply with directions35
1
A person who fails to comply with a general direction or a special direction shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
2
In any proceedings for an offence under paragraph (1), it shall be a defence for the person charged to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
Enforcement of special directions36
1
Without limitation to any other remedy available to the Council, if a special direction is not complied with within a reasonable time, the harbour master may put persons on board the vessel to carry out the direction or may otherwise cause the vessel to be handled in accordance with the direction.
2
If there is no-one on board a vessel to comply with a special direction, the harbour master may proceed as if the direction had been given and not complied with, provided that the powers of this paragraph must not be exercised—
a
in relation to a vessel other than a lighter unless, after reasonable inquiry has been made, the master cannot be found;
b
in relation to a lighter unless it is obstructing or interfering with navigation.
3
Expenses incurred by the Council in the exercise of the powers conferred by paragraph (1) shall be recoverable by the Council as if it were a charge of the Council in respect of the vessel.
Master’s responsibility in relation to directions37
The giving of a general direction or a special direction shall not diminish or in any other way affect the responsibility of the master of the vessel to which the direction is given in relation to the vessel, to persons on board the vessel, to the cargo or any other person or property.
Saving for existing directions, byelaws etc.38
Any general direction, special direction, byelaw, regulation, licence, lease, consent or other agreement made, issued, entered into or granted by the Council in relation to the undertaking and in force immediately on or before or on the date on which this Order comes into force, shall, notwithstanding the amendments set out in article 67 (amendment of Act and Orders) and the repeals and revocations set out in article 68 (revocation / repeal) and Schedule 4 (revocation / repeal), continue to have effect.