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An Act to make provision for the closure of certain commercial harbour facilities and to enable the Colchester Borough Council to cease to be a harbour authority for the harbour of Colchester; and for connected purposes.
[22nd March 2001]
(1)By the Colchester Corporation Act 1892 (c. cvii) the undertaking of the Commissioners for the Improvement of the River Colne was transferred to the mayor, aldermen and burgesses of the borough of Colchester (“the Corporation”):
(2)The Colchester Borough Council (“the Council”) as successors to the Corporation are the harbour authority of the harbour of Colchester (“the harbour”):
(3)Following the closure of the port facilities at Wivenhoe in 1991, when the existing commercial operator of these facilities withdrew, the remaining port facilities of the harbour are located at the Hythe and Rowhedge:
(4)These facilities are located between 8 and 10 miles upriver from the mouth of the estuary of the River Colne and access is possible only at certain states of the tide, making the harbour unattractive to commercial users who are increasingly employing larger vessels than can be suitably accommodated at the harbour, and who favour ports where greater access is possible:
(5)Trade at the harbour declined rapidly between 1988 and 1991 and, despite the efforts of the Council to effect economies in its harbour operations, those operations have been making substantial deficits:
(6)In November 1993 the Council approved recommendations from its Harbour Working Party in liaison with harbour users to effect economies in the operation of the harbour, but the implementation of those recommendations has not enabled the deficits to be eliminated and, despite further action taken by the Council in 1994 and 1995, the harbour operations have since recorded the following deficits:—
1994/5 – £176,500
1995/6 – £123,200
1996/7 – £147,600
1997/8 – £213,600
1998/9 – £258,600:
(7)The Council is advised that there is no reasonable prospect of maintaining and managing the harbour otherwise than at a continuing loss which would have to continue to be subsidised from the general revenues of the Council:
(8)It is undesirable that the losses sustained by the Council in respect of the harbour undertaking should continue and it is therefore necessary for action to be taken by the Council as soon as possible with a view to preventing any further losses:
(9)The long-term decline of the trade of the harbour and its businesses has had a deleterious effect upon the character and appearance of East Colchester, which the Council is seeking to address both by providing for the orderly closure of the residual commercial facilities of the harbour and by implementing initiatives for the regeneration of vacant and derelict land, in conjunction with the Colchester Economic Forum, the Essex County Council, the private sector and the local communities of East Colchester:
(10)These initiatives include the establishment of the East Colchester Partnership which receives funding under the Government’s Single Regeneration Budget from the East of England Development Agency in recognition of the area’s acute social needs and the necessity of reviving economic activity:
(11)It is expedient that the residual commercial facilities between the Upper Hythe and Fingringhoe should be closed and that the Council should cease to be a harbour authority for the harbour:
(12)It is expedient that, following closure, certain provision should be made in respect of pilotage and navigational aids on parts of the River:
(13)It is expedient that the other provisions of this Act should be enacted:
(14)The purposes of this Act cannot be effected without the authority of Parliament:
(15)A plan showing the lands in respect of which certain user rights may be affected by the closure of the residual commercial facilities under the powers of this Act and also a book of reference to such plan containing the names of the owners and lessees or reputed owners and lessees and of the occupiers of those lands were duly deposited in the Office of the Clerk of the Parliaments and the Private Bill Office, House of Commons, and with the proper officer of the Essex County Council:
(16)In relation to the promotion of the Bill for this Act the requirements of section 239 of the Local Government Act 1972 (c. 70) have been observed:
May it therefore please Your Majesty that it may be enacted, and be it enacted, by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:—
This Act may be cited as the Colchester Borough Council Act 2001.
In this Act, unless the context otherwise requires—
“the 1961 Act” means the Land Compensation Act 1961 (c. 33);
“the 1972 Act” means the Local Government Act 1972 (c. 70);
“the appointed day” means the day appointed by the Council in accordance with section 4 (Appointed day) of this Act as the appointed day for the purposes of this Act;
“the borough” means the borough of Colchester;
“the Commissioners” means the Brightlingsea Harbour Commissioners, who are the statutory harbour authority for the harbour of Brightlingsea;
“the Council” means the Colchester Borough Council;
“the harbour” means the harbour of Colchester, the limits of which extend from the North Bridge, Colchester (51°53.6'N, 00°54.0'E) down the River (including its creeks and branches, other than Brightlingsea Creek) to an imaginary line drawn south-westward through two beacons at Colne Point (51°46.1'N, 01°02.7'E), thence to the Inner Bench Head Buoy (51°45.9'N, 01°01.9'E), thence to the Fishery Buoy (51°45.9'N, 01°01.6'E) and thence northward to Mersea Stone (51°48.0'N, 01°00.5'E);
“harbour authority” has the same meaning as in the Harbours Act 1964 (c. 40);
“the River” means the River Colne;
“statutory undertaker” means—
any person who is a statutory undertaker for any of the purposes of the Town and Country Planning Act 1990 (c. 8); and
any operator of a telecommunications code system.
(1)Subject to the provisions of this section, on and from the appointed day no person shall use, or permit to be used, land abutting the River between the Haven Bridge, Colchester and an imaginary line drawn across the River at Ballast Quay, Fingringhoe—
(a)for the loading or unloading of cargoes for commercial purposes; or
(b)the embarking or disembarking of passengers,
on or from any vessel in the River.
(2)On and from the appointed day the Council shall cease to be under any obligation which is inconsistent with subsection (1) above and to which the Council was subject in whatever capacity.
(3)On and from the appointed day the Council shall cease to be a harbour authority for the harbour.
(4)After the appointed day the Council—
(a)may dismantle, demolish and remove any property owned by the Council as former harbour authority;
(b)may sell or otherwise realise any such property; and
(c)may appropriate any such property or the proceeds of sale or realisation thereof for the purposes of any of its functions.
(5)After the appointed day the Council may dispose of or appropriate, for any of the purposes for which it is authorised by any enactment to acquire land by agreement, all or any part of the land owned by it as former harbour authority.
(6)Nothing in the preceding provisions of this section shall—
(a)affect the status of the Council as owner of the bed of the River;
(b)affect the exercise of any functions of a water undertaker within the meaning of the Water Industry Act 1991 (c. 56);
(c)prevent the landing of fish from any fishing vessel;
(d)affect the operation of the seasonal ferry between Wivenhoe, Rowhedge and Fingringhoe;
(e)prevent the use of Ballast Quay, Fingringhoe for the shipment by river of minerals extracted from workings adjacent to that quay;
(f)prevent the use of land for the embarking or disembarking of any person on or from any pleasure craft or sailing barge or any vessel in the service of the Council, a government department or statutory undertaker; or
(g)affect the operation of the harbour undertaking of the Commissioners.
(7)If any of the rights of the Council as owner of the bed of the River have been extinguished by any enactment repealed by this Act, those rights shall revive on the appointed day.
(1)The date appointed by the Council by resolution as the appointed day shall be a date not less than two months after the date of the resolution of the Council.
(2)As soon as may be after the passing of that resolution the Council shall publish a notice thereof once in each of two successive weeks in Lloyd’s List newspaper and at least one local newspaper circulating in the borough.
(a)a copy of Lloyd’s List newspaper and of a local newspaper containing the notice referred to in subsection (2) above; or
(b)a photostatic or other reproduction certified by the Director of Administration of the Council to be a true reproduction of a page or part of a page of Lloyd’s List newspaper and of a local newspaper bearing the date of its publication and containing the notice referred to in subsection (2) above,
shall be evidence of the publication of the notice and of the date of publication.
(1)On and from the appointed day—
(a)the jurisdiction of the Commissioners for the purposes of the Pilotage Act 1987 (c. 21) shall include so much of the River as lies between an imaginary line drawn across the River immediately upstream of the site of No. 42 Buoy, Wivenhoe (51°51.2'N, 00°57.5'E) and the imaginary line mentioned in the definition of “the harbour” in section 2 (Interpretation) of this Act; and
(b)nothing in subsection (5) of section 7 of that Act shall prevent a pilotage direction under that section from applying to that area of the River.
(2)On and from the appointed day—
(a)the Commissioners shall for the purposes of Part VIII of the Merchant Shipping Act 1995 (c. 21) be the local lighthouse authority for so much of the River as lies between the imaginary lines referred to in subsection (1) above; and
(b)section 210 of that Act (light dues leviable by local lighthouse authorities) shall have effect so as to enable the Commissioners to levy charges in respect of any lighthouse, buoy or beacon situated in so much of that part of the River as is outside the harbour of Brightlingsea.
(1)On and from the appointed day the byelaws relating to pleasure boats made by the Council on 7 June 1972 and confirmed on 26 March 1973 (as amended by the byelaws made on 10 June 1985 and confirmed on 19 July 1985) shall have effect as if—
(a)they were made by the Council under section 76 of the Public Health Act 1961 (c. 64) and section 235 of the 1972 Act; and
(b)the administrative area of the Council encompassed the whole of the areas to which the byelaws apply.
(2)The byelaws mentioned in subsection (1) above shall cease to have effect upon the confirmation by the Secretary of State of byelaws which—
(a)provide for the regulation of pleasure craft on the River; and
(b)are made by the Council and the Tendring District Council under section 235 of the 1972 Act or any other relevant enactment;
and any such byelaws may be made so as to apply to any area to which the byelaws mentioned in that subsection applied immediately before they ceased to have effect.
(1)Subject to the provisions of this section any person who—
(a)on the appointed day is in possession of an interest in land and has a right to use that land which is incapable of being exercised as a consequence of the operation of subsection (1) of section 3 (Closure of harbour facilities and termination of status as harbour authority) of this Act; and
(b)on 26 November 1999 was carrying on upon that land a business involving his use of the harbour for the shipping or unshipping of cargoes or the embarking or disembarking of passengers,
shall be entitled to be paid compensation by the Council in respect of any loss suffered by him in consequence of the operation of that subsection.
(2)Any compensation payable under subsection (1) above shall be assessed in accordance with the provisions of the 1961 Act.
(3)Any question of disputed compensation under this section shall be referred to and determined by the Lands Tribunal and the provisions of sections 2 and 4 of the 1961 Act shall, subject to any necessary modifications, apply to any such determination.
(4)Any dispute as to whether a person is entitled to compensation under subsection (1) above shall be determined by a single arbitrator appointed by the parties or, in default of agreement, by the President of the Law Society.
The agreement set out in Schedule 1 to this Act is hereby confirmed and made binding upon the Council and the Commissioners and effect shall be given thereto except so far as may be otherwise agreed in writing between the Council and the Commissioners.
On the appointed day the enactments specified in the first column of Schedule 2 to this Act shall be repealed to the extent specified in the second column of that Schedule.
1(1)In this Agreement—
“the Act” means a private Act of Parliament promoted by the Council in respect of the harbour of Colchester substantially in the form of the Bill so that (without prejudice to the generality of the foregoing) the Council is empowered to cease to be a harbour authority for the harbour of Colchester;
“the appointed day” has the same meaning as in the Bill;
“the Bill” means the Colchester Harbour Bill as deposited in Parliament on 26 November 1999;
“the Commissioners” means Brightlingsea Harbour Commissioners;
“the Council” means Colchester Borough Council;
“the imaginary lines” means an imaginary line drawn across the River immediately upstream of the site of No. 42 Buoy, Wivenhoe (51°51.2'N, 00°57.5'E) and an imaginary line drawn along the current seaward limits of the harbour of Colchester;
“the River” means the River Colne.
(2)References in this Agreement to navigational aids and buoys include references to their ground tackle.
2(1)Clause 3 of this Agreement is conditional upon the Commissioners assuming jurisdiction for the purposes of the Pilotage Act 1987 on the appointed day of so much of the River as lies between the imaginary lines, in consequence of the coming into operation of a provision of the Act.
(2)Clause 4 of this Agreement is conditional upon the Commissioners becoming on the appointed day a local lighthouse authority for so much of the River as lies between the imaginary lines, in consequence of the coming into operation of a provision of the Act.
3In consideration of the Commissioners agreeing to assume the jurisdiction mentioned in clause 2(1) of this Agreement the Council shall pay to the Commissioners the sum of £50,000 (fifty thousand pounds) and at the same time shall indemnify the Commissioners in respect of any corporation tax payable thereon.
4(1)Upon becoming a local lighthouse authority as mentioned in clause 2(2) of this Agreement there shall be transferred to the Commissioners from the Council without charge the ownership of all navigational aids in the River Colne (between the imaginary lines) in respect of which the Council had statutory responsibility immediately before the date of such transfer.
(2)The Council shall maintain at its own expense as agent for the Commissioners the navigational aid mentioned in paragraph (3) below to such standard as is reasonably required by the Commissioners for so long as that aid is required in connection with the Commissioners' functions as a local lighthouse authority.
(3)The aid referred to in paragraph (2) above is the light at Bateman’s Tower (51°48.3'N, 1°00.73'E).
(4)The Commissioners shall maintain to the reasonable satisfaction of the Council and in the positions reasonably required by the Council the buoys mentioned in paragraph (5) below if and to the extent that those buoys are required in connection with the discharge of any obligation or function of the Council in respect of fisheries and subject to the responsibilities of the Commissioners as local lighthouse authority in consequence of the Act.
(5)The buoys referred to in paragraph (4) above are—
|Fishery Buoy No. 1||Sphere||Unlit|
|Fishery Buoy No. 2||Sphere||Unlit|
|Fishery Buoy No. 3||Sphere||Unlit|
(6)For the period of 20 years from the appointed day the Commissioners shall, if and to the extent that they are so required by the Environment Agency, maintain to the reasonable satisfaction of that Agency the buoys mentioned in paragraph (7) below in the positions reasonably required by that Agency:
Provided that this obligation shall not require the Commissioners to carry out any activity in relation to those buoys which was carried out by the Environment Agency prior to the date on which the Commissioners became a local lighthouse authority in consequence of the Act.
(7)The buoys referred to in paragraph (6) above are—
|38||Colne Barrier||Can||Fl.R. 3 sec.|
|31||Colne Barrier||Cone||Fl.G. 3 sec.|
|33||Colne Barrier||Cone||Fl.G. 3 sec.|
|40||Colne Barrier||Can||Fl.R. 3 sec.|
(8)Prior to the transfer mentioned in paragraph (1) above and subject to the approval of Trinity House under section 199 of the Merchant Shipping Act 1995 the Council shall replace each of the aids mentioned in Annex A to this Agreement with an aid manufactured in glass reinforced plastic but otherwise having the same shape and characteristic as the aid which it replaces; and such replacement shall be to the reasonable satisfaction of the Commissioners.
(9)Prior to the transfer mentioned in paragraph (1) above and subject to the approval of Trinity House under section 199 of the Merchant Shipping Act 1995 the Council shall:—
(a)replace the unlighted buoy mentioned in Annex B to this Agreement with a lighted green conical buoy, to the reasonable satisfaction of the Commissioners;
(b)replace the unlighted buoy mentioned in Annex C to this Agreement with a lighted red can buoy, to the reasonable satisfaction of the Commissioners;
(c)discontinue and remove the aids mentioned in Annex D to this Agreement; and
(d)move the No. 13 buoy station to the westernmost point of the bank on the Brightlingsea side of the River.
(10)The Council shall transfer to the Commissioners the benefit of any manufacturers' guarantees and warranties relating to any replacement aids.
(11)The Council shall maintain to a reasonable standard each of the aids mentioned in paragraph (1) above (including those replaced in accordance with paragraphs (8) and (9) above) until they are transferred to the Commissioners in accordance with paragraph (1) above.
(12)In consideration of the Commissoners agreeing to assume the functions of a local lighthouse authority as mentioned in clause 2(2) of this Agreement and of maintaining the buoys mentioned in paragraphs (5) and (7) above the Council shall pay to the Commissioners annually the sum calculated in accordance with the provisions of clause 6 of this Agreement.
5(1)The sums mentioned in clause 3 of this Agreement shall be payable on the appointed day.
(2)The sum referred to in clause 4(12) of this Agreement shall be first payable on the appointed day and thereafter on each anniversary of that day.
6(1)Subject to the provisions of this clause the sum referred to in clause 4(12) of this Agreement shall be £65,000 (sixty five thousand pounds).
(2)In the event that the sum referred to in clause 4(12) of this Agreement is first payable on a date (“the date of first payment”) which falls after 1 November 2000, the sum due on the date of first payment shall be £65,000 (sixty five thousand pounds) or, if greater, the following sum, namely:—
(3)The sum payable on each anniversary of the date of first payment shall be £65,000 (sixty five thousand pounds) or, if greater, the following sum, namely:—
(4)In this clause:—
“The Base figure” means the figure for the Index for the month of October 2000;
“Index” means the Index of Retail Prices published by the Stationery Office or such other Agent as may be authorised to publish the same by one of Her Majesty’s Principal Secretaries of State.
(5)If it becomes impossible by reason of any change after the date of this Agreement in the methods used to compile the Index or for any other reason to calculate the sum referred to in clause 4(12) of this Agreement by reference to the Index, the determination of a fair and reasonable alternative method for calculating for the purposes of this clause any increase in that sum due to general inflation shall (in the absence of agreement) be determined by arbitration in the manner provided in clause 12 of this Agreement.
7So much of any sum for which provision for payment is made under this Agreement as is unpaid immediately after the date on which it falls due shall accrue interest from that date at 3% above the base lending rate from time to time of Barclays Bank plc:
Provided that if that rate shall at any time cease to exist or be ascertainable the Council shall substitute for it the base lending rate of such of the London Clearing Banks as it shall prescribe in writing.
8As soon as reasonably practicable after the enactment of the Act the Council shall after consultation with the Commissioners resolve to appoint a day for the purposes of the Act and the day so appointed shall be not more than six months after the date of that resolution.
9(1)The Council shall account to the Commissioners for any dues or charges received or properly recoverable by the Council in respect of pilotage or navigational aids if and to the extent that such dues or charges are referable to any period after the Commissioners assume jurisdiction for pilotage as described in clause 2(1) of this Agreement or, as the case may be, become a local lighthouse authority, as described in clause 2(2) thereof.
(2)The Commissioners shall account to the Council for any dues or charges received or properly recoverable by the Commissioners in respect of pilotage or navigational aids if and to the extent that such dues or charges are referable to any period before the Commissioners assume jurisdiction for pilotage as described in clause 2(1) of this Agreement or, as the case may be, become a local lighthouse authority, as described in clause 2(2) thereof.
10(1)The Commissioners shall not be liable for any act, neglect or default of the Council as harbour authority (including competent harbour authority) which occurs before the date on which the Commissioners assume jurisdiction for pilotage or, as the case may be, become a local lighthouse authority in accordance with the Act.
(2)The Council shall indemnify and hold the Commissioners harmless from all claims or demands which may be made on or against the Commissioners in consequence of any such act, neglect or default as is mentioned in paragraph (1) above:
(i)nothing in this indemnity shall impose any liability on the Council in respect of any such claim or demand in so far as and to the extent to which it is attributable to the act, neglect or default of the Commissioners, their contractors, agents, workmen or servants; and
(ii)the Commissioners shall give to the Council immediate notice of any such claim or demand and no settlement or compromise thereof shall be made except with the consent of the Council who (if it so elects) shall at its expense have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the same.
(3)The Council shall ensure that any byelaws made by the Council in relation to the River under section 235 of the Local Government Act 1972 after the Commissioners assume jurisdiction for pilotage as described in clause 2(1) of this Agreement and become local lighthouse authority as described in clause 2(2) thereof shall have effect subject to the statutory functions of the Commissioners in relation to pilotage and navigational aids.
(4)The Council shall disclose to the Commissioners all documents relating to its pilotage and local lighthouse authority functions which appear to the Council to be relevant to, or which may otherwise assist the Commissioners in, the discharge by the Commissioners of any responsibility which they assume by reason of the Act.
(5)The duty of the Council under paragraph (4) above shall include a duty to provide the Commissioners with copies of such documents as the Commissioners may reasonably require:
Provided that nothing in this paragraph or paragraph (4) above shall require the Council to act in breach of any law or existing legal obligation.
(6)The Council shall permit the Commissioners without charge to maintain the aids and buoys mentioned in clause 4(1), (5) and (7) of this Agreement upon the bed of the River owned by the Council and without prejudice to the generality of the foregoing the Council shall indemnify the Commissioners in respect of any fee or other charge which may be made by any person for the right to attach to the bed of the River any such aid or buoy in the position in which the same is presently located.
(7)The Commissioners shall, if so requested by the Council, give the Council all reasonable assistance (other than financial assistance) in securing the passing of the Act and the Council shall if requested reimburse the Commissioners any expenses reasonably incurred by them in providing such assistance.
(8)The costs and expenses referred to in this clause shall be payable 30 days after written details thereof have been supplied to the reasonable satisfaction of the Council.
(9)This Agreement shall be scheduled to the Bill and is subject to such alterations as may be made by Parliament therein but in the event of Parliament making any material alteration in this Agreement the party affected by such alteration may rescind this Agreement by giving written notice to the other party before the Consideration (if any) of the Bill in the Second House and thereupon this Agreement shall become void and the Council shall withdraw from the Bill:—
(a)the provisions confirming this Agreement; and
(b)clause 5 (Pilotage and navigational aids), except to such extent as the parties may agree.
11So far as concerns value added tax:—
(i)where under this Agreement an amount of money is to be paid such amount shall be regarded as being exclusive of value added tax;
(ii)any obligation to pay an amount of money under this Agreement shall be construed as requiring payment to the Commissioners of any value added tax properly chargeable in respect of any payment made by or taxable supply received by the Council under the terms of or in connection with this Agreement.
12Any dispute arising in respect of this Agreement shall be referred to and be settled by a single arbitrator to be agreed between the parties or failing agreement to be appointed on the application of either of them by the President of the Law Society and subject as aforesaid the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment of it shall apply to such arbitration and the costs of such arbitrator shall be met by the parties in accordance with the decision of such arbitrator and failing any such decision equally between the parties.
|13A||Lower Binnaker||Cone||Fl.G. 3 sec.|
|15||Binnaker||Cone||Fl.G. 3 sec.|
|18||Ooze End||Can||Fl.R. 3 sec.|
|19||Aldboro Point||Cone||Fl.G. 3 sec.|
|20||—||Can||Fl.R. 3 sec.|
|24||Alresford||Can||Fl.R. 3 sec.|
|27||Wivenhoe Reach||Cone||Fl.G. 3 sec.|
|9||Long Bar||Cone||Fl.G. 3 sec.|
Executed as a deed this 21st day of September 2000.
|Short title and chapter||Extent of repeal|
|An Act for improving the Navigation from the Hythe at Colchester to Wivenhoe in the County of Essex; and for better paving, lighting, watching, cleansing and improving the said Town of Colchester. 51 Geo. III (c. xliii) (1811)|
Section 12, except in so far as it authorises the Council to keep up and repair any footways and any banks of the River.
|An Act to amend an Act for improving the Navigation from the Hythe at Colchester to Wivenhoe in the County of Essex; and for better paving, lighting and improving the Town of Colchester; and for making a new Channel and deepening the River Colne from Wivenhoe to Ram’s Hard leading towards the Sea. 10 & 11 Vict. (c. cclxxxi) (1847)||The whole Act, so far as unrepealed.|
|Colchester Corporation Act 1892 (c. cvii)||Parts II and III.|
|Essex Act 1987 (c. xx)||Section 100.|
|River Colne Barrier (Wivenhoe) Order 1991 (S.I. 1991/1760)|
In article 9(1)(g), the words “after consultation with the Colchester Port Authority”.
In article 10(1)(e), the words “after consultation with the Colchester Port Authority”.
In article 15(1), the words “and after consultation with the Colchester Port Authority”.
In articles 16 and 17(1), the words “after consultation with the Colchester Port Authority”.
Article 18(3) and (4).
In article 24, in the proviso to paragraph (2), the words “after consultation with the Colchester Port Authority and”.
The Common seal of COLCHESTER BOROUGH COUNCIL was affixed in the presence of:
J. C. Garnett,
A. C. Weavers,
SIGNED as a deed by BRIGHTLINGSEA HARBOUR COMMISSIONERS acting by their chairman and clerk
B. J. Newman
J. S. Partridge
Clerk to the Commissioners
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