Statutory Harbour Authorities should comply with the Port Marine Safety Code ("PMSC"). One of the recommendations of the PMSC is that Statutory Harbour Authorities without 'general powers of direction' should either secure such powers through a Harbour Revision Order ("HRO") or apply to be designated with powers of harbour direction.
This extract from the most recent PMSC Guidance (March 2015) explains:
1.10. Some harbour authorities have powers, through their local enabling legislation, to give ‘general directions’ to enable a harbour authority, after due consultation, to lay down general rules for navigation (subject to certain constraints) and regulate the berthing and movements of ships. These carry the force of law, but are often easier to achieve and amend that using byelaws, and thus act as a useful mechanism for managing navigation and furthering safety.
1.11. Harbour authorities would be well advised to secure these powers, by using a harbour revision order, to support the effective management of vessels in their harbour waters.
1.12. Alternatively harbour authorities may apply for designation with the power to give ‘harbour directions’. Designation is a simpler process than obtaining a harbour revision order and the power of harbour directions is similar in relation directing the movement, mooring, equipment and manning of ships. A non- statutory Code of Conduct on the use of this power has been agreed between representatives of the ports, commercial shipping and recreational sailing sectors.
The process to apply for powers of harbour direction is much simpler than applying for an HRO and the application is free (as opposed to £4,000 for a non-works HRO). The downside is that harbour directions only apply to 'ships' rather than all vessels. The definition of 'ships' can include leisure vessels if 'used in navigation', but not, for example, Jet Skis which are simply used for 'messing about on the water'.
In deciding whether to apply to be designated with powers of harbour direction, the first step is to consider the local statutory harbour legislation which applies at your port or harbour. If it contains a wide power of general direction, particularly one which applies to 'vessels' rather than just 'ships' it would normally be inappropriate to apply to be designated with powers of harbour direction. This is because the power of general direction would usually be less restrictive regarding the process to introduce new general directions and is likely to have a wider scope than powers of harbour direction.
Current round of applications to be designated with Powers of Harbour Direction
Powers of harbour direction can only be applied for at certain times. The first round of applications was in 2014 with designation in April 2015. The Department for Transport has recently announced that the second round of applications is now open.
The process of applying to be designated with powers of harbour direction involves:
1. Informing the Department for Transport that your Port or Harbour wishes to apply to be designated with powers of harbour direction (an expression of interest). This can be done via email and is a very simple process - by 31 January 2016.
2. Carrying out a pre-application consultation with your harbour users. This could include placing a one page notice on the Harbour website (with a link to guidance on Harbour Directions), emailing members of any harbour user group (or similar) already in place with the same information and placing a shorter notice in a local newspaper. Ideally the consultation should run for 28 days - completed by middle of March 2016.
3. Passing a board resolution confirming that your Port or Harbour will have regard to and comply with the code of conduct on harbour directions (this includes a requirement for a Port User Group, having regard to supplementary guidance issued from time to time and applying the dispute resolution procedure set out in the code). The resolution also needs to authorise a suitable person to apply to the Secretary of State for Transport for your Port or Harbour to be designated with powers of harbour direction - ideally by middle of March 2016 (but definitely prior to 30 March 2016).
4. Prepare and submit 6 page application to Department for Transport containing all the required information (rationale for applying, details of any local statutory provisions which need amending or repealing, details of the consultation and consultation responses, code of conduct statement (including signed statement of assurance confirming Board resolution passed), further information regarding the consultation (i.e. notices published etc.)) - closing date 31 March 2016.
5. When asked by the Department for Transport, providing them with a list of email addresses of Port Users (who you consulted with) so that they can email them when the Department for Transport carries out its consultation and to confirm the correct statutory provisions related to defining the 'harbour limits' and your organisation's incorporation as Statutory Harbour Authority for your Port or Harbour.
There is no application fee for applying to the Department for Transport to be designated. If the application is successful, designation is likely to take place in April 2017.
Copies of the original Harbour Directions guidance, code of conduct and further information on the current round of applications can be found by clicking on the links below:
Lara Moore is an Associate in the Real Estate Team specialising in marine planning, licensing and regulation. Lara successfully acted for two of the harbour authorities designated with powers of harbour direction in the first round of applications. She frequently advises port authorities, developers and marine businesses on a full range of marine regulatory matters.
