Appendix 3 - Harbour Legal Advice Update
Perth and Kinross Council · 28 May 2025
Back to Economy and Infrastructure Committee — 28 May 2025 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
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APPENDIX 3 HARBOUR LEGAL ADVICE UPDATE PKC progress a Harbour Revision Order to remove CHA duties and commercial vessel over 24 meters. PKC can remove Competent Harbour Authority (CHA) duties with the continuation of Statutory Harbour Authority (SHA) obligations. These SHA obligations would be reduced with the role of the harbour reduced by limiting commercial vessels over 24 metres. Legal advice confirmed this would be an approach with some pros and cons: Pros • Uses the same process as current HRO • Clear Health & Safety obligations and will not require Scottish Ministers to approve something unique. • Legal advice and order could be prepared - the order does not require much change from the current order process • Powers will be retained by PKC as SHA • No need to change bylaws (which would require further legal work and ministerial approval) • Once progressed another HRO could also reinstate a CHA, if required. Cons • As SHA, the Council still retain the obligations of SHA and advised to comply with the Port Marine Safety Code (PMSC see terms below). These obligations would align with the activities at the harbour and allow for some flexibility. • Harbour master function would still exist • Abolishing the SHA would be the most effective solution to significantly lessen total obligations. Whilst the most effective way to reduce obligations would be to advance the closure order, which would relieve PKC of more responsibilities. Legal pointed out another risk: alongside the full closure order, PKC would need to initiate a separate legal process to amend the bylaws, which would require ministerial approval. As the landowner, PKC would need to implement processes to address post-closure activities. Maintaining the SHA would not significantly burden PKC compared to implementing safety protocols after closure. Terms The Port Marine Safety Code (PMSC) The Port Marine Safety Code (PMSC) is a set of guidelines and standards designed to promote safety within the maritime industry, particularly in the context of ports and harbours. The purpose of the Port Marine Safety Code is to enhance safety management practices, ensuring the protection of people, property, and the environment.
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Key aspects and objectives of the Port Marine Safety Code include: • Risk Management – The code emphasizes the importance of risk assessment and management. Ports are encouraged to identify potential hazards, assess associated risks, and implement measures to mitigate those risks effectively • Safety Management Systems (SMS) – The PMSC encourages the establishment and implementation of Safety Management Systems by port and harbour authorities. These systems help ensure a systematic and organised approach to safety, including clear procedures, communication, and monitoring • Continuous Improvement – The code promotes a culture of continuous improvement in safety performance. Ports are encouraged to review and enhance their safety practices regularly, learning from incidents and near misses • Legal Compliance – Ports are expected to comply with relevant national and international maritime laws and regulations. The PMSC provides a framework to assist ports in meeting these legal obligations • Communication and Coordination – Effective communication and coordination among all stakeholders, including port authorities, port users, and emergency services, are crucial for ensuring a comprehensive approach to safety • Training and Competence – The code stresses the importance of training and maintaining the competence of personnel involved in port operations. This includes harbour masters, pilots, and other staff responsible for safety-critical tasks • Emergency Preparedness – Ports are encouraged to develop and maintain emergency response plans, ensuring readiness to respond promptly and effectively to incidents that may pose a threat to safety. While compliance with the Port Marine Safety Code is voluntary, ports and harbours that adhere to its principles demonstrate a commitment to high standards of safety management. The code serves as a valuable tool for fostering a safety-conscious culture within the maritime industry, contributing to the overall well-being of those involved in port activities and the protection of the marine environment. Competent Harbour Authority (CHA) and Statutory Harbour Authority (SHA) refer to different types of harbours and ports each having distinct powers and responsibilities. Competent Harbour Authorities focus more on operational management without explicit statutory power, whereas Statutory Harbour Authorities are vested by law with specific regulatory and enforcement capabilities. A CHA is typically defined by its ability to oversee the operation, maintenance, and development of a port or harbour. Their powers often include: - Health and Safety Oversight - Environmental Management - Vessel Movements: Authority over the navigation and berthing of vessels within the harbour.
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- Port Development: Decision-making related to infrastructure improvements and expansions. CHAs may not have statutory powers but can operate under various maritime laws and regulations, giving them the authority to act on behalf of the port community. SHA is established by legislation and has specific statutory powers granted by law. Their key powers typically include: - Legal Authority Empowered to impose legal obligations on users within the harbour. - Regulatory Enforcement: Authority to enforce compliance with local, national, and international maritime laws. - Charges and Fees: Ability to set and collect fees for the use of harbour facilities and services. - Safety Regulations: Legal responsibility to ensure safety standards and conduct inspections of vessels and operations. Transition to the new operating model: Currently, while PKC is implementing changes to harbour obligations and activities at the harbour to close commercial traffic; the port is operating in a compliant manner and maintaining business as usual. Although some of the burden on operations from the previous contract between Perth Harbour and CalMac contract has decreased, there are still significant pressures to remain compliant. PKC is currently navigating through just under 150 distinct duties and obligations. These responsibilities are defined under a variety of key documents and legislative frameworks, which include: • Good Practice Guide / Port Marine Operations, • Harbours Act 1964, • Marine Navigation Act 2013, • Port Marine Safety Code. For all UK Harbour Authorities and other marine facilities, berths and terminals. • Scottish Outdoor Access Code 2005. • Lease 1990-01-05 • Pilotage Act 1987 • Perth and Kinross Council (Port Marine Safety Code) Safety Management System Policy Document