The Newlyn Pier and Harbour Revision (Constitution) Order 2010

Citation and commencement

1.—(1) This Order may be cited as the Newlyn Pier and Harbour Revision (Constitution) Order 2010 and shall come into force on 21^st May 2010.

(2) The Newlyn Pier and Harbour Orders 1906 to 1996(1) and this Order may be cited together as the Newlyn Pier and Harbour Orders 1906 to 2010.

Interpretation

2.  In this Order, unless the context otherwise requires—

“appointed Commissioner” means a Commissioner appointed under article 4(1)(a) or (b), 6 or 8;

“appointing bodies” means the Commissioners and the Council;

“the chair” means the person who chairs the meetings of the Commissioners;

“the clerk” means the clerk of the Commissioners;

“the Commissioners” means the Newlyn Pier and Harbour Commissioners;

“the Council” means the Cornwall Council;

“the harbour” means the harbour of Newlyn within the limits described in section 6 of the Newlyn Pier and Harbour Order 1906 and includes any land or property belonging to the Commissioners;

“the harbour management representative” means the senior executive responsible for the operational, financial and other business activities of the harbour for the time being employed by the Commissioners;

“licensed fishing boat” means a fishing boat in respect of which fishing is licensed under regulations made under section 4 of the Sea Fish (Conservation) Act 1967(2);

“local councillor” means a member of the Council who represents an electoral area which includes all or part of the towns of Penzance or Newlyn;

“the new constitution date” means 31^st May 2010.

Incorporation of the Commissioners’ Clauses Act 1847

3.  Sections 1 to 4, 6 to 10, 12, 14 to 16, 36 to 92, 94 to 97, 99 to 102, 104 and 109 to 111 of the Commissioners Clauses Act 1847(3) (so far as applicable to and not inconsistent with the Newlyn Pier and Harbour Orders 1906 to 2010), are incorporated with and form part of this Order.

Constitution of the Commissioners

4.—(1) On and after the new constitution date, the Commissioners, subject to articles 5, 6, 8, 10 and 11, are to consist of eleven persons of whom—

(a) eight are to be appointed by the Commissioners;

(b) two are to be appointed by the Council;

(c) one is to be the harbour management representative.

(2) Each Commissioner appointed under paragraph (1)(a) and (b) and article 10 must be a person who appears to the appointing body in question to have special knowledge, experience or ability appropriate to the efficient, effective and economic discharge by the Commissioners of their functions.

(3) Without prejudice to the generality of paragraph (2), the appointing bodies must have regard to the importance of the fishing industry to Newlyn and Cornwall and to the objective of ensuring that the Commissioners include persons having special knowledge, experience or ability in one or more of the following matters—

(a) commercial licensed fishing boat ownership (in the case of at least three Commissioners, of whom at least one must be an active sea-going fisherman);

(b) wholesale fish selling (in the case of at least one Commissioner);

(c) commercial or financial matters;

(d) water related leisure interests;

(e) community matters;

(f) management of harbours;

(g) administration;

(h) local government;

(i) environmental matters; and

(j) any other skills and abilities considered from time to time by the Commissioners to be relevant to the discharge by them of their functions.

(4) Each of the appointing bodies must secure, so far as reasonably practicable, that the Commissioners appointed by them will, between them, have special knowledge, experience and ability in a broad and complementary range of matters relevant to the efficient, effective and economic discharge by them of their functions.

(5) In making an appointment under article (1)(b) the Council must have special regard to the local knowledge of any local councillor who applies to become a Commissioner under that article.

(6) In making an appointment under paragraph (1)(a) or (b) or article 8 or 10, each of the appointing bodies must act in accordance with any guidance issued by the Secretary of State from time to time with respect to the exercise of such functions.

Appointment and terms of office of first Commissioners

5.—(1) The first appointments under article 4(1)(a) and (b) must be made on, or as soon as reasonably practicable after, 24^th May 2010.

(2) Of the Commissioners appointed under article 4(1)(a)—

(a) three of the Commissioners are to hold office from the new constitution date until 30^th May 2011,

(b) three of the Commissioners are to hold office from the new constitution date until 30^th May 2012;

(c) two of the Commissioners are to hold office from the new constitution date until 30^th May 2013;

as the Commissioners must specify when they make each of those appointments.

(3) One of the Commissioners holding office until 30^th May 2013 must be appointed as the chair.

(4) One of the Commissioners appointed under article 4(1)(b) is to hold office from the new constitution date until 30^th May 2011 and the other is to hold office from the new constitution date until 30^th May 2012.

Transitional appointed Commissioner

6.—(1) To ensure that the Commissioners have sufficient experience for the efficient exercise of their functions on and after the new constitution date, the existing Commissioners may before that date appoint from their number one other Commissioner to serve, in addition to the Commissioners appointed under article 4, as an appointed Commissioner for a period of six months beginning on the new constitution date.

(2) The Commissioner appointed under paragraph (1) is not entitled to vote on any matter to be decided by the Commissioners or any committee of the Commissioners.

Terms of office of subsequent Commissioners

7.  An appointed Commissioner (other than any first Commissioner appointed under article 5) is, unless appointed to fill a casual vacancy and subject to articles 9 and 11 of and paragraph 3 of Schedule 2, to hold office for the period of three years from 31^st May next following his appointment.

Casual vacancies

8.—(1) A casual vacancy arising in the office of an appointed Commissioner must, unless it is not reasonably practical to do so, be filled by the appointment of a Commissioner by the relevant appointing body in accordance with the requirements of article 4(2) to (6) as if the appointment were made under article 4.

(2) A Commissioner appointed to fill a casual vacancy under this article is, subject to articles 9 and 11 and paragraph 3 of Schedule 2, to hold office during the remainder of the term for which the Commissioner in whose place he has been appointed was appointed.

Declaration to be made by Commissioners

9.  No person may act as a Commissioner until that person has made the declaration set out in Schedule 1 (or a declaration to that effect), and a person who fails to make that declaration within three months of being appointed must cease to be a Commissioner.

Additional Commissioners

10.  The Commissioners, if they see fit, may at any time appoint up to two additional Commissioners for a fixed term of up to twelve months.

Disqualification of Commissioners

11.—(1) If the Commissioners are satisfied that a Commissioner (other than the harbour management representative)—

(a) has been absent from meetings of the Commissioners for a period of six consecutive months without the permission of the Commissioners;

(b) has become bankrupt or has made an arrangement with his creditors; or

(c) is incapacitated by physical or mental illness from discharging the functions of a Commissioner,

the Commissioners may by resolution declare the office of that Commissioner to be vacant and on such a resolution coming into effect that office is to become vacant.

(2) If the Commissioners are satisfied that a Commissioner—

(a) has acted in a manner which has seriously impeded or prejudiced the Commissioners in the performance of their functions;

(b) has failed to comply with the standards required for the governance of the harbour by the Commissioners;

(c) has acted in a manner which may bring the Commissioners into disrepute or which is otherwise inappropriate having regard to the functions of the Commissioners; or

(d) is otherwise unable, unwilling or unfit to discharge adequately the functions of a Commissioner;

the Commissioners may request in writing the resignation of that Commissioner or, by resolution, declare the office of that Commissioner to be vacant and on receipt of the resignation or on such a resolution coming into effect, as the case may be, that office is to become vacant.

Advisory body

12.—(1) The Commissioners must establish one or more advisory body or bodies which the Commissioners must consult on all matters substantially affecting the harbour.

(2) The Commissioners must make arrangements for every advisory body to meet not less than twice a year.

(3) The Commissioners must take into consideration any matter, recommendation or representation which may from time to time be referred or made to them by an advisory body whether or not that advisory body has been consulted by the Commissioners.

(4) An advisory body established under this article is to consist of such number of persons appointed by the Commissioners as the Commissioners consider appropriate.

(5) Appointments to an advisory body must be made by the Commissioners in accordance with a scheme prepared by them for that purpose and the scheme must provide for the appointment of persons who, in the opinion of the Commissioners, are representative of persons having an interest in the functioning of the harbour.

(6) An advisory body may determine its own quorum and procedure and must appoint a chair.

(7) An individual member of an advisory body may, on giving notice in writing to the chair of that body, send a substitute to any meeting of the body.

(8) A member of an advisory body is to hold office for the period of three years from the date of this appointment and at the end of that period is to be eligible for reappointment.

(9) A member of an advisory body may resign his office at any time by notice in writing given to the chair of the Commissioners.

Indemnity insurance for the Commissioners

13.  The Commissioners may enter into, and pay premiums for, a contract of insurance to indemnify the Commissioners jointly or severally against personal liability arising from any act or omission of the Commissioners or of any of them; not being an act or omission by any Commissioner which that Commissioner knew to be a breach of duty or concerning which that Commissioner was reckless as to whether it was such a breach.

Provisions applying to Commissioners

14.  On and after the new constitution date, Schedule 2 has effect with respect to the Commissioners.

Revocations

15.  On the new constitution date the enactments mentioned in the first and second columns of Schedule 3 are revoked to the extent specified in the third column of that Schedule.

Signed by authority of the Secretary of State for Transport

Richard Bennett

Head of Ports Division

Department for Transport

20th May 2010