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Statutory Instruments

1994 No. 2733

HARBOURS, DOCKS, PIERS AND FERRIES

The Portsmouth Mile End Quay (Continental Ferry Port Phase 7) Harbour Revision Order 1994

Made

20th October 1994

Coming into force

1st November 1994

Whereas the Portsmouth City Council have applied for a harbour revision order under section 14 of the Harbours Act 1964(1);

And whereas the Secretary of State for Transport having, in pursuance of paragraph 1A of Schedule 3 to the said Act(2), determined that the application is made in relation to a project which falls within Annex II to the Council Directive 85/337/EEC(3) on the assessment of the effects of certain public and private projects on the environment and whose characteristics require that it should be made subject to an environmental assessment, has directed the applicant to supply him with the information referred to in Annex III to the Directive;

And whereas the Secretary of State for Transport has, in accordance with paragraph 3A of the said Schedule, furnished bodies appearing to him to have environmental responsibilities with the information supplied to him under the said paragraph 1A of that Schedule and has consulted such bodies;

And whereas there were objections made to the application which were not withdrawn, and an inquiry was held in accordance with paragraph 4(3) of the said Schedule;

And whereas the Secretary of State for Transport has considered the objections made and not withdrawn, the information supplied under the said paragraph 1A and the report of the person holding the inquiry, and is satisfied as mentioned in subsection (2)(b) of the said section 14:

Now, therefore, the Secretary of State for Transport (being the appropriate Minister under subsection (7) of the said section 14(4)) in exercise of the powers conferred by that section and now vested in him(5), and of all other powers enabling him in that behalf, hereby makes the following Order:—

Citation and commencement

1.—(1) This Order may be cited as the Portsmouth Mile End Quay (Continental Ferry Port Phase 7) Harbour Revision Order 1994 and shall come into force on 1st November 1994.

(2) The Portsmouth Mile End Quay Harbour Revision Orders 1966 to 1993 and this Order may be cited as the Portsmouth Mile End Quay Harbour Revision Orders 1966 to 1994.

Interpretation

2.—(1) In this Order—

“the Act of 1847” means the Harbours, Docks and Piers Clauses Act 1847(6);

“the authorised works” means the works authorised by this Order or any part of those works, and where any part of those works remains uncompleted, includes the site thereof;

“the Council” means the Portsmouth City Council;

“deposited plan” and “deposited sections” mean respectively the plan and sections prepared in duplicate signed by an Assistant Secretary in the Department of Transport and marked “Plan and Sections referred to in the Portsmouth Mile End Quay (Continental Ferry Port Phase 7) Harbour Revision Order 1994”, of which one is deposited at the offices of the Department of Transport and one at the offices of the Head of Legal Services of the Council;

“enactment” means any enactment whether public general or local and includes an order, byelaw, rule, regulation, scheme or other instrument having effect by virtue of an enactment;

“the level of high water” means the level of mean high-water springs;

“the limits of deviation” means the limits of deviation shown on the deposited plan;

“Trinity House” means the Corporation of Trinity House of Deptford Strond;

“the Mile End Quay undertaking” means the undertaking of the Council authorised by the Portsmouth Mile End Quay Harbour Revision Orders 1966 to 1993, by this Order, and by the Mile End Gardens (Portsmouth) Act 1978(7);

“Queen’s Harbour Master” means the person for the time being appointed to be Queen’s Harbour Master of the Dockyard Port of Portsmouth under the Dockyard Ports Regulation Act 1865(8);

“tidal work” means so much of the authorised works as is on, under or over any part of the seashore lying below the level of high water;

“vessel” includes every description of water craft, including non-displacement craft and seaplanes, used or capable of being used as a means of transportation on water.

(2) All distances and lengths stated in any description of works, powers or lands shall be construed as if the words “or thereabouts” were inserted after each such distance and length.

Incorporation of Act of 1847

3.—(1) Subject to paragraph (2) below, the Act of 1847 (except sections 6 to 13, 16 to 20, 23, 25 to 27, 31, 48, 49, 50, 67, 81, 82, 84 to 90, 95, 97 and 98 and so much of the proviso to section 83 as follows the words “the special Act”), so far as the same is applicable for the purposes of and is not inconsistent with, or varied by, the provisions of this Order, is hereby incorporated with this Order.

(2) In the Act of 1847 as so incorporated—

(a)section 15 shall have effect as if, for the words from “shall forfeit” to the end of the section, there were substituted the words “shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale”;

(b)section 34 shall have effect as if, after the word “may”, there were inserted the words “(on producing, if so required, a duly authenticated document showing his authority)”;

(c)section 63 shall have effect as if the words “and a further sum of twenty shillings for every hour that such vessel shall remain within the limits aforesaid, after a reasonable time for removing the same has expired after such requisition” were omitted; and

(d)section 69 shall have effect as if for the words from “shall forfeit” to the end of the section there were substituted the words “shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale”.

(3) In the construction of the Act of 1847 as so incorporated the expression “the special Act” shall mean this Order, and the expression “vessel” shall have the meaning assigned to it by article 2(1) of this Order.

(4) (a) For the purposes of section 83 of the Act of 1847 as so incorporated, sections 236 to 238 of the Local Government Act 1972(9) shall apply to this Order as if it were such an enactment as is referred to in the said section 236, and—

(i)for the purposes of the said section 236 the confirming authority for byelaws made under the said section 83 shall be the Secretary of State; and

(ii)the said section 236 shall have effect as if in subsection (7) thereof after the word “confirm” where it first occurs the words “with or without modification” were inserted.

(b)If the Secretary of State, on considering byelaws made by the Council relating to the Mile End Quay undertaking and submitted under the said section 236 as having effect in accordance with paragraph (a) above, proposes to make a modification which appears to him to be substantial, then—

(i)he shall inform the Council and require them to take any steps he considers necessary for informing persons likely to be concerned with the modification; and

(ii)he shall not confirm the byelaws until such period has elapsed as he thinks reasonable for the Council and other persons who have been informed of the proposed modification to consider and comment on it.

Power to construct works

4.—(1) Subject to the provisions of this Order, the Council may, when they have acquired the necessary lands or obtained sufficient interests therein, make and maintain, within the limits of deviation, the following works in the City of Portsmouth: Reclamation of 2.17 hectares of land from the foreshore between the existing Continental Ferry Port and Whale Island Bridge to the north.

(2) The Council may within the limits of deviation extend, enlarge, alter, replace or relay the authorised works.

(3) The Council may authorise any person to carry out the authorised works.

Power to deviate

5. In constructing the authorised works the Council may deviate laterally from the lines or situations thereof shown on the deposited plan to the extent of the limits of deviation and may deviate vertically from the levels shown on the deposited sections to any extent not exceeding three metres upwards and to such extent downwards as may be found necessary or convenient.

Further powers as to works

6. Subject to the provisions of this Order, the Council may, in connection with the construction of the authorised works, enclose and reclaim from the foreshore and bed of the sea, and may hold and use as part of the Mile End Quay undertaking, so much of the foreshore and bed of the sea as is situate within the limits of deviation and is required for, or in connection with, the construction of the authorised works.

Subsidiary works

7.—(1) Subject to paragraph (2) below and to the other provisions of this Order, the Council may, in connection with the authorised works and within the limits of deviation, construct, erect, lay down, place, maintain, remove, replace, work or use all necessary or convenient bridges, abutments, booms, pontoons, fenders, bollards, ladders, tanks, pumps, conduits, pipes, wires, mains, cables, rails, signals, conveyors, cranes, lifts, hoists, passenger side loaders, drops, weighbridges, stairs, stages, platforms, catwalks, landing places, dolphins, buoys, moorings, beacons, approaches, buildings, sheds, offices, depots, roads, walls, fences, gates, equipment, machinery and appliances and such other works and apparatus as they think fit.

(2) Electrical works or equipment constructed, erected, laid down, or placed or maintained, worked or used pursuant to the powers conferred by this article shall be so constructed, erected, laid down or placed, and so maintained, worked or used, that any electricity generated or conveyed by any such works or equipment or used therein or in connection therewith does not cause interference (whether by induction or otherwise) with any telecommunications apparatus or with telecommunication by means of any such apparatus.

Power to appropriate lands and works for particular trades etc

8. Notwithstanding anything in any statutory provision of local application the Council may from time to time for the purpose of or in connection with the management of the Mile End Quay undertaking set apart and appropriate any part of the authorised works for the exclusive, partial or preferential use and accommodation of any particular trade, person, vessel or class of vessels, or goods, subject to the payment of such charges and subject to such terms, conditions and regulations as the Council may think fit.

Limits of Harbour Master’s jurisdiction

9.—(1) Subject to the provisions of paragraph (2) below, the limits within which the powers of the Harbour Master of the Council may be exercised under and subject to the provisions of the Act of 1847 as incorporated with this Order, and all other powers enabling him in that behalf, shall extend—

(a)to a distance of 100 metres in every direction from the authorised works; and

(b)to so much of the dredged channels provided for access to those works and for accommodation of vessels at those works under article 12 (Power to dredge, etc) of this Order as extend beyond 100 metres from those works.

(2) The powers exercisable by virtue of this article shall be limited to vessels going to, moored at, or departing from the authorised works.

(3) Section 52 of the Act of 1847 as incorporated with this Order shall extend to empower the Harbour Master of the Council to give directions prohibiting the mooring of vessels in or near to any approach to the authorised works.

(4) In a case of conflict between any direction given by the Harbour Master of the Council and any direction given by the Queen’s Harbour Master, the direction given by the Queen’s Harbour Master shall prevail.

Recovery of rates in respect of vessels

10. In addition to the remedy given by section 44 of the Act of 1847 as incorporated with this Order (recovery of rates in respect of a vessel by distraint and sale of the vessel and its tackle), and whether or not the collector of rates has gone on board the vessel and demanded any rates which the master of the vessel has neglected or refused to pay, the Council may recover such rates as a debt in any court of competent jurisdiction.

Harbour Master may prevent sailing of vessels

11. The Harbour Master of the Council may prevent the removal or sailing from the authorised works of any vessel until evidence has been produced to him of the payment of any ship, passenger and goods dues and other charges payable in respect of the vessel or of passengers thereon or of the goods imported or exported therein.

Power to dredge etc

12.—(1) The Council may with the consent of the Queen’s Harbour Master enter upon and from time to time dredge, scour, deepen and improve the bed, shores and channels of the sea adjoining or near to the authorised works for the purpose of affording uninterrupted means of access thereto or the accommodation of vessels thereat.

(2) Without prejudice to the generality of paragraph (1) above, the Council may exercise the powers of that paragraph so as to ensure a depth of 1.5 metres below Admiralty chart datum in the vicinity of, and in the approaches to, the authorised works.

(3) All chalk, gravel, rock and other materials dredged up or removed by the Council in the exercise of the powers of this article shall be the property of the Council; and they may use the same or any part thereof, or they may sell or otherwise dispose of or remove or deposit the same, as they think fit:

Provided that no such materials shall be laid down or deposited in any place below the level of high water—
(a)
otherwise than in such a position and under such conditions and restrictions as may be specified by the Secretary of State; and
(b)
without the consent in writing of the Queen’s Harbour Master having been first obtained.

(4) The powers of the Council under this article shall be exercisable subject to the provisions of articles 25 (Crown rights) and 26 (Saving rights of Queen’s Harbour Master) of this Order; and, in particular and without prejudice to that general limitation, any consent given to the exercise of such powers by the Crown Estate Commissioners on behalf of Her Majesty may be given subject to such restrictions and conditions (including the payment by the Council to the Crown Estate Commissioners of royalties, rents or sums of money in respect of materials raised from any place below the level of high water and sold by the Council under this article or in respect of any place below the level of high water upon which materials may be deposited) as may be fixed by the Crown Estate Commissioners.

Fine for obstructing works

13. Any person who intentionally or recklessly obstructs any person acting under the authority of the Council in setting out the lines of the authorised works, or who moves or removes any pole, stake, station point or bench mark established for the purpose of such setting out shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Tidal works not to be executed without approval of Secretary of State

14.—(1) A tidal work shall not be constructed, altered, enlarged, replaced, relaid or extended except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before the work is begun.

(2) If a tidal work is constructed, altered, enlarged, replaced, relaid or extended in contravention of this article—

(a)the Secretary of State may by notice in writing require the Council at their own expense to remove the tidal work or any part thereof and to restore the site thereof to its former condition; and, if on the expiration of thirty days from the date when the notice is served upon the Council they have failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; or

(b)if it appears to the Secretary of State urgently necessary so to do, he may remove the tidal work or part of it and restore the site to its former condition; and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the Council as a debt in any court of competent jurisdiction.

Provision against danger to navigation

15.—(1) In case of injury to or destruction or decay of a tidal work or any part thereof the Council shall as soon as reasonably practicable notify Trinity House and the Queen’s Harbour Master and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House shall from time to time direct.

(2) If the Council fail to notify Trinity House or the Queen’s Harbour Master as required by paragraph (1) above or to comply in any respect with a direction given under that paragraph, they shall be liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

Abatement of works abandoned or decayed

16.—(1) Where a tidal work is abandoned or suffered to fall into decay, the Secretary of State may by notice in writing require the Council at their own expense either to repair and restore the work or any part thereof, or to remove the work and restore the site thereof to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.

(2) Where a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or suffered to fall into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include that part of the work or any portion thereof in any notice under this article.

(3) If on the expiration of thirty days from the date when a notice under this article is served upon the Council they have failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; and any expenditure incurred by him in so doing shall be recoverable from the Council as a debt in any court of competent jurisdiction.

Survey of tidal works

17. If the Secretary of State any any time deems it expedient to do so, he may order a survey and examination of a tidal work or of the site upon which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in any such survey and examination shall be recoverable from the Council as a debt in any court of competent jurisdiction.

Permanent lights on tidal works

18.—(1) After the completion of a tidal work the Council shall at the outer extremity thereof exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House shall from time to time direct.

(2) If the Council fail to comply in any respect with a direction given under paragraph (1) above, they shall be liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

Lights on tidal works during construction

19.—(1) The Council shall at or near a tidal work during the whole time of the construction, alteration, enlargement, replacement, relaying or extension thereof exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House shall from time to time direct.

Power to lease

20. The Council may lease or grant the use or occupation of, or any right or interest in or over, any lands, works, buildings, equipment or other property forming part of the authorised works for harbour purposes for such period and on such terms and conditions as shall be agreed between the Council and the person taking the same.

Parking places

21. The Council may provide facilities within the authorised works for the parking of vehicles (including trailers) and for that purpose may erect barricades or fencing with relative offices, waiting rooms and other conveniences and may make reasonable charges for the use of such facilities.

Removal of vehicles etc.

22.—(1) If a vehicle is left without the permission of the Council—

(a)in any place where it is likely to obstruct or interfere with the use of the authorised works; or

(b)in any part of the authorised works where the parking of vehicles is prohibited by notice erected by the Council; the Council may remove the vehicle or cause it to be removed.

(2) Any notice erected under paragraph (1)(b) above shall be conspicuously posted in or close to the place to which it relates.

(3) Where the Council in exercise of the powers of this article remove a vehicle or cause it to be removed, the expense of and incidental to the removal shall be recoverable by the Council from any person responsible as a debt in any court of competent jurisdiction.

(4) For the purposes of paragraph (3) above, “person responsible” shall have the same meaning as in section 102(8) of the Road Traffic Regulation Act 1984(10).

(5) If the Council in exercise of the powers of this article remove a mechanically propelled vehicle to a place not readily visible from the place whence it is so removed they shall, if and so soon as it is reasonably practicable to do so, send to the person for the time being registered as the owner of the vehicle for the purposes of the Road Vehicles (Registration and Licensing) Regulations 1971(11) or any other regulations having the like effect for the time being in force, at his last known address, his registered address or the address where the vehicle is ordinarily kept, notice that they have exercised the powers of this article and of the place to which the vehicle has been removed.

(6) In this article “vehicle” includes trailer.

Further extension of section 86 of Portsmouth Corporation Act 1959

23. Section 86 (Powers with respect to disposal of wrecks) of the Portsmouth Corporation Act 1959(12), as having effect in accordance with—

(a)article 21 of the Portsmouth Mile End Quay Revision Order 1966(13);

(b)article 21 of the Portsmouth Mile End Quay Revision Order 1973(14);

(c)article 15 of the Portsmouth Mile End Quay Harbour Revision Order 1988(15);

(d)article 24 of the Portsmouth Mile End Quay Harbour Revision Order 1991(16); and

(e)article 21 of the Portsmouth Mile End Quay (Berth No 2 Extension) Harbour Revision Order 1993(17);

shall have effect as if the references to any approach to the Flathouse Wharf and Quay in subsections (1) and (7) of that section included references to any approach to the authorised works.

Protection of National Rivers Authority

24. Nothing in this Order or in any enactment incorporated with or applied by this Order shall prejudice or affect the application of any byelaws made under the Water Resources Act 1991(18) or relieve any person of the obligation to obtain any consent or licence from the National Rivers Authority required under that Act or any other enactment.

Crown rights

25. Nothing in this Order affects prejudicially any estate, right, power, privilege or exemption of the Crown and, in particular, nothing in this Order authorises the Council to take, use or in any manner interfere with any portion of the shore or bed of the sea or of any river, channel, creek, bay or estuary or any land, hereditaments, subjects or rights of whatsoever description 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 on behalf of Her Majesty first had and obtained for that purpose.

Saving rights of Queen’s Harbour Master

26. Nothing in this Order shall take away, alter, prejudice or affect the jurisdiction or any rights, powers, authorities or privileges of the Queen’s Harbour Master.

Inquiries by Secretary of State

27. The Secretary of State may cause such inquiries to be held as he may consider necessary for the purposes of the exercise of any of his powers or duties under this Order, and subsections (2) to (5) inclusive of section 250 of the Local Government Act 1972 shall apply to any such inquiry as if it were a local inquiry held in pursuance of subsection (1) of that section.

Nick Montagu,

A Deputy Secretary in the

Department of Transport

Signed by authority of the Secretary of State for Transport

20th October 1994

Explanatory Note

(This note is not part of the Order)

This Order empowers Portsmouth City Council as the harbour authority for the Continental Ferry Port to reclaim 2.17 hectares of land from the foreshore to enable the land to be used as part of the Continental Ferry Port. The Order also authorises the Council to dredge the channel giving access to the works and empowers the Council to lease the works once completed.

(1)

1964 c. 40; section 14 was amended by the Transport Act 1981 (c. 56), section 18 and Schedule 6, paragraphs 2, 3, 4(1) and 14, and by the Transport and Works Act 1992 (c. 42), Schedule 3, paragraph 1.

(2)

Schedule 3 was amended by the Transport Act 1981, section 18 and Schedule 6, paragraphs 4(2) to (7) and 12 and by the Transport and Works Act 1992, Schedule 3, paragraph 10. Paragraphs 1A and 3A were inserted by the Harbour Works (Assessment of Environmental Effects) Regulations 1988 (S.I. 1988/1336), regulations 3 and 4 and amended by S.I. 1992/1421.

(3)

OJ No. L 175, 5.7.85, p. 40.

(4)

For the definition of “the Minister” (mentioned in section 14(7)), see section 57(1).

(5)

S.I. 1981/238.

(6)

1847 c. 27.

(7)

1978 c. vii.

(8)

1865 c. 125.