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The Comhairle nan Eilean Siar (Various Harbours) Harbour Revision Order 2002


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Reserve fund

54.—(1) If in respect of any financial year the moneys received by the Comhairle on account of the revenue of the harbour undertaking exceed the moneys expended or applied by it in respect thereof, the Comhairle may in respect of that year carry to the credit of a reserve fund in respect of the harbour undertaking such a sum as it considers reasonable not exceeding the amount of such excess.

(2) Moneys for the time being standing to the credit of the reserve fund may be invested in any securities in which trustees are for the time being authorised to invest trust moneys including debenture stock or other security created by the Comhairle.

(3) Any reserve fund provided under this article may be applied–

(a)in making good to the regional rate fund any deficiency at any time arising in the income of the Comhairle from the harbour undertaking;

(b)in meeting any extraordinary claim or demand at any time arising against the Comhairle in respect of the harbour undertaking;

(c)in defraying any expenditure in connection with the harbour undertaking for which capital is properly applicable or in providing money for repayment of loans;

(d)in defraying expenditure to be incurred from time to time in repairing, maintaining, replacing and renewing buildings, works, plant, vessels, equipment or articles forming part of the harbour undertaking; or

(e)for any purpose which in the opinion of the Comhairle is desirable in the interests of securing the improvement, maintenance or management of a harbour area in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea to or from a harbour area.

Power to sell or lease works

55.—(1) The Comhairle may, with the consent in writing of, and upon such terms, conditions and restrictions (and in the case of a lease for such period) as may be approved by, the Scottish Ministers, sell or lease works in a harbour area.

(2) As from such sale or the commencement of such lease the purchaser, to the extent authorised by his conveyance, or the lessee during and to the extent provided in his lease, shall have and may exercise in relation to the works all or any of the powers conferred upon the Comhairle by this Order, and shall in respect of the works be subject to all the restrictions, liabilities and obligations to which the Comhairle is subject, and shall perform all the duties of the Comhairle under this Order in respect of the works.

(3) No lease made under this section shall be assignable without the previous consent in writing of the Scottish Ministers, and the provisions of this article with respect to such lease or the lessee shall apply to any such assignation or to the assignee respectively.

Power to lease harbour land and enter into agreements

56.  The Comhairle may for such consideration and upon such terms and conditions and subject to such restrictions and for such period as it thinks fit sell, feu, lease, excamb or otherwise dispose of the whole or any part of the lands which from time to time form a harbour area and may carry into effect agreements with respect to any offices, stalls and ancillary buildings in connection therewith.

Saving for certain enactments, etc.

57.—(1) Nothing in this Order affects prejudicially the operation of–

(a)the Prevention of Oil Pollution Act 1971(1);

(b)the Control of Pollution Act 1974(2);

(c)the Offshore Petroleum Development (Scotland) Act 1975(3);

(d)Part II of the Food and Environment Protection Act 1985(4);

(e)Part I of the Coast Protection Act 1949(5), or the operation of sections 34 and 36 of that Act in their application to operations carried out by virtue of article 33 above;

(f)any of the relevant statutory provisions as defined in section 53 of the Health and Safety at Work etc. Act 1974(6).

(2) Subsection (1) of section 80 (repeal or modification of certain provisions by regulations) of the Health and Safety at Work etc. Act 1974 shall apply to any provision of this Order and to any regulation and byelaw made under it as it applies to any provision to which it relates.

(3) The Town and Country Planning (Scotland) Act 1997(7) and any order, regulations, rules, schemes and directions made or given thereunder and any restrictions or powers thereby imposed or conferred in relation to land shall apply and may be exercised in relation to any land notwithstanding that development thereof is or may be authorised by this Order.

Saving for town and country planning

58.  Any works such as are authorised by article 5, article 6 or article 7 above shall not for the purposes of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992(8) be treated as–

(a)development authorised by an order made under section 14 of the Harbours Act 1964 which designates specifically the nature of the development authorised and the land upon which it may be carried out; or

(b)development on operational land by statutory undertakers or their lessees in respect of a dock, pier or harbour undertaking, being development which is required for the purposes of shipping or in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour.

Saving for Commissioners of Northern Lighthouses

59.  Nothing in this Order shall affect the jurisdiction or authority of the Commissioners of Northern Lighthouses.

For protection of Scottish and Southern Energy plc

60.  For protection of Scottish and Southern Energy plc the following provisions shall, save to the extent that the company may release the Comhairle therefrom, apply and have effect:–

(1) In this article, unless the subject or context otherwise requires–

“apparatus” means any electrical plant and electric line as respectively defined in section 64 of the Electricity Act 1989(9) in or adjoining any of the relevant harbour areas;

“the company” means Scottish and Southern Energy plc;

“in” in a context referring to apparatus includes under, over, across, along or upon;

“position” includes depth;

“relevant harbour areas” means the areas over which the Comhairle exercises jurisdiction under this Order at Kyles Scalpay Terminal, Ludaig Jetty, Vatersay Causeway Slip East and Vatersay Causeway Slip West,

(2) (a) Before exercising the powers of article 6 above at, over, under, or near to any apparatus the Comhairle shall give to the company not less than 28 days' notice in writing of its intention so to do, stating the position of the proposed operation and shall furnish such particulars with respect thereto as the company may reasonably require;

(b)If within 21 days of receipt of such notice as is provided for by sub-paragraph (2)(a) above the company notify the Comhairle in writing of the need to take measures of which the company shall be sole judge to protect apparatus from possible harm caused by the proposed operation and specify the reasonable requirements subject to which the proposed operation may be carried out, the Comhairle shall–

(i)carry out such operation only in accordance with such requirements;

(ii)pay to the company the expenses reasonably incurred by them in and in connection with the carrying out of any of the said protective measures;

(c)Nothing in this Order shall relieve the Comhairle from liability for damage caused by it to any apparatus in the exercise of the powers conferred on it by article 6 above and the Comhairle shall indemnify the company against all claims, demands, costs, damages and expenses not otherwise provided for in this article which may be made or taken against or recovered from or incurred by the company by reason or in consequence of the exercise of the powers of article 6 above, or any act or omission of the Comhairle in or in connection with such exercise.

(3) The Comhairle and the harbour master shall exercise the powers conferred by this Order and any other statutory powers of a harbour authority or the harbour master in such a way as not to interfere unreasonably with access by the company to their apparatus for the purpose of inspection, maintenance, alteration or reconstruction.

(4) Nothing in this Order shall authorise the Comhairle to charge any ship, passenger or goods dues as defined in the Harbours Act 1964, in respect of any vessel entering a relevant harbour area solely for the purpose of inspecting, maintaining, altering or reconstructing apparatus.

(5) Any difference arising between the Comhairle and the company under this article shall be referred to and determined by an arbiter to be mutually agreed upon, or failing such agreement to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Electrical Engineers.

(6) In settling any difference under this article the arbiter shall have regard to any duties or obligations which the company may be under in respect of any apparatus and may if he thinks fit require the Comhairle to execute any temporary or other works so as to avoid so far as may be reasonably possible interference with any purpose for which the apparatus is used.

Crown Rights

61.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular and without prejudice to the generality of the foregoing, nothing in this Order authorises the Comhairle to take, use, enter upon or in any manner interfere with, any land or interest in land (including any portion of the shore or bed of the sea or of any river, channel, creek, bay or estuary) or any rights of whatsoever description–

(a)belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those commissioners; or

(b)belonging to a government department or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.

(2) A consent under paragraph (1) above may be given unconditionally, or subject to terms and conditions.

Repeals and revocations

62.—(1) The Acts specified in columns (1) and (2) of Part I of Schedule 2 to this Order are hereby repealed to the extent specified in column (3) of that Part.

(2) The Orders specified in columns (1) and (2) of Part II of Schedule 2 to this Order are hereby revoked to the extent specified in column (3) of that Part.

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