Statutory Harbour Authorities ("SHAs") are responsible for running the majority of operational ports and harbours in the UK. Their powers are derived under statute; including through local Acts and Orders. Their duties typically include navigational safety, keeping the port or harbour open for the shipping and unshipping of goods and passengers, and protection of the port environment.
SHAs comply with the Port Marine Safety Code ("PMSC"). The PMSC advises SHAs to keep their statutory harbour powers under review to ensure that they are appropriate and sufficient for complying with their statutory duties.
SHAs raise the money required for them to comply with their statutory duties by charging harbour and port users ''harbour dues''. If the number of harbour users at a port or harbour is low, it may be difficult for the SHA to raise sufficient funds to comply with its statutory duties. However, most harbours and ports are required by law to remain open for the shipping and unshipping of goods and passengers. Therefore, even if they are no longer commercially viable they are legally unable to ''close''.
Previously the complete closure of a harbour required a local act of parliament. However, the Marine Navigation Act 2013 amended the Harbours Act 1964 to create a new process. The process allows an order to be made revoking an SHAs status as a Statutory Harbour Authority where the ''underlying purpose'' is met (namely that the harbour is no longer ''commercially viable or necessary''). Such orders are known as Harbour Closure Orders. They should provide a lower cost and more straightforward way of achieving the closure of a harbour. Once the harbour is ''closed'', it could for example be redeveloped as a marina and the surrounding land used for development purposes.
Harbour Closure Order applications in England and for non-fisheries harbours in Wales are currently made to the Department for Transport ("DfT"). However, a draft Wales Bill was published on 20 October 2015 for pre-legislative scrutiny. If the Bill is passed through Parliament in its current form it will transfer responsibility for Harbour Closure Orders for most non-fishery Welsh harbours to the Welsh Government.
Between 18 August 2015 and 13 October 2015 the DfT consulted on draft statutory guidance about the circumstances in which a Harbour Closure Order will be made including; how the requirement for the Secretary of State to have regard to the ''underlying purpose'' of a harbour closure order will be implemented in practice. It also covered the information required to be provided by harbours applying for a Harbour Closure Order.
The consultation closed on 13 October 2015 and the DfT published its summary of responses on 4 February 2016. On 12 May 2016, following the end of the consultation process, the DfT published its statutory guidance on Harbour Closure Orders and non-statutory guidance on Pilotage Function Removal Orders in final form.
In relation to Harbour Closure Orders, the guidance states that in assessing whether a harbour is commercially viable or necessary, the Secretary of State will consider matters, which may include (but are not limited to) the following factors:
- a change in the local economic area, reducing demand for the use of the harbour
- physical restrictions in terms of the size of vessels that can access its facilities making ongoing usage unviable;
- a decline in the number of vessels using the area; or,
- a change in the type of vessels using the area.
A full copy of the guidance is available here.
To find out more about Harbour Closure Orders or Pilotage Function Removal Orders please contact our Associate Lara Moore (a specialist Marine Regulatory lawyer).