Appendix 1 - Summary of guidance and process of a prescribed Harbour Order
Perth and Kinross Council · 28 May 2025
Back to Economy and Infrastructure Committee — 28 May 2025 and its agenda
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APPENDIX 1 What is a harbour closure order? This does not mean that a harbour will physically close or cease to exist, but it does mean that a harbour authority would be relieved of its statutory duties and will no longer be classed as a statutory harbour authority (SHA). It may mean that the way people use the harbour area has to change. Why would a statutory harbour authority apply for an Order? A SHA may wish to be relieved of its statutory functions, where the harbour is no longer viable, commercially or otherwise, because of: - a change in the local economic area; - physical restrictions in terms of the size of ships that can access its facilities; - a drop in the number of vessels using the area; - not being able to compete with other local ports; - a change in the type of vessels using the area. If a harbour is not viable then the harbour authority may not be able to fulfil the duties or meet the costs imposed on it by its statutory functions. This may cause dis- benefits to the SHA and those using or considering using the harbour. What should a statutory harbour authority consider before applying for a closure order? There are three kinds of duties a harbour authority has: statutory duties, imposed either in the local legislation for that authority or in general legislation; general common-law duties; and fiduciary duties. The order will only remove the statutory duties; the other two kinds of duties may still exist for the SHA. If the former SHA remains the owner of the infrastructure they will retain the responsibilities associated with ownership. The first step for the harbour authority is to ensure that it is aware of its local duties and the powers, policies, systems and procedures that they have in place. This is to ensure that nothing is removed unintentionally. The SHA should review the powers in its local legislation including those incorporated from other enactments. These may include powers to make byelaws or give directions either general or special and to manage and maintain the harbour. Some of the powers may derive directly from the Harbours Act 1964. If a SHA, taking into account the above, is considering giving up its statutory functions, which includes its enforcement powers then it is recommended that it consult informally with users and anyone with an interest in the harbour. An SHA considering relinquishing its powers should also bear in mind that the Porth Marine Safety Code also applies to non-statutory harbours.
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A SHA will need to state who may take over their role in various matters for example: - Lighting and buoying responsibilities - under Part VIII of the Merchant Shipping Act 1995 (MSA95) each SHA is the local lighthouse authority for its area (section 193, as amended) and under section 198 of that Act a local lighthouse authority may be directed by the general lighthouse authority (the Northern Lighthouse Board in Scotland) to lay down buoys, or alter lighthouses, buoys and beacons in its area. The future responsibility for any lights or buoys should be discussed with the NLB. - Oil pollution - section 137(2)(d) of the MSA95 enables the Secretary of State to give direction to a SHA as respects ships or cargoes where an accident has occurred in a harbour. - Wrecks – section 252 of MSA95 provides a power where a vessel is sunk, stranded or abandoned in or near to the approaches of a harbour so that it is, or is likely to become, a danger to navigation to take possession or, raise, remove or destroy the vessel, to light and buoy it until raised or destroyed and to sell and reimburse the authority from the proceeds of sale. - Pilotage - A Competent Harbour Authority (CHA) is a statutory harbour authority (SHA) with duties to assess the need for pilotage and powers to provide the appropriate pilotage services and impose pilotage directions as necessary to secure the safety of ships navigating in their waters. A CHA for an area where pilotage is no longer considered necessary may wish to be relieved of the functions. The removal of pilotage functions from harbour authorities would relieve them of their powers and duties relating to pilotage under the Pilotage Act 1987 (“the 1987 Act”). A harbour authority from which such functions were removed would cease to be a CHA, but would continue to be an SHA unless a closure order was also sought. Provisions enabling this to be done came into force with the commencement of section 1 of the Marine Navigation Act 2013 in October 2013. The application process is as follows: Section 17D and Part 1 of Schedule 3 of the 1964 Act set out the procedure that harbour authorities must follow before applying. Pre-application: Anyone intending to apply for a harbour closure order should contact Transport Scotland prior to making an application to ensure they are aware of what should be included in their statement and draft closure order. Consulting other organisations: Authorities are encouraged to consult other relevant stakeholders and those organisations and persons likely to be affected by the proposals prior to making the application. Public notices: Once a SHA has submitted its application, it must arrange for a notice of that application to be placed in the Edinburgh Gazette and for two consecutive weeks in one or more local newspapers. A 42-day period for objections and representations will then begin from the date of the first published notice.
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Transport Scotland will discuss and agree the content of these notices prior to publication. Consultation process: At the same time as the advert appears in the newspapers Scottish Ministers will consult such bodies as it considers appropriate. Each consultee will be given a 42- day period to respond which may run concurrently with the public notice period. Typical consultees may include: - Ports industry bodies - Scottish Environment Protection Agency - Maritime and Coastguard Agency - Northern Lighthouse Board - Neighbouring local authorities - Neighbouring harbour authorities - Chamber of Shipping - Royal Yachting Association The list of consultees will be notified to the authority who will be required to provide each consultee with a copy of their application documents. Registering an objection or representation: Organisations or individuals wishing to object to or make a representation about a harbour order must do so within the 42-day statutory period allowed for objections and representations. Resolution of objections: Where objections to a harbour closure order are made, the authority will be allowed a period to negotiate with the objectors with a view to resolving the objections. The length of this period will be agreed with the authority if required. Written representations: Where there are outstanding objections and efforts to resolve them have been unsuccessful, Scottish Ministers will make a decision on how best to proceed with the application and this may include a process of written representations or in very contentious cases a public inquiry or hearing. Scottish Ministers’ decision: Once Scottish Ministers have taken the decision on whether or not to make the closure order, they will notify the authority, consultees and any objectors and publish the decision on the Transport Scotland website. The authority must publish a notice in the Edinburgh Gazette and local newspaper stating: - that the harbour closure order has been made - where a copy of the order can be viewed - when the order comes into operation - the procedure to challenge the validity of the order.
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