The Ipswich Barrier Order 2012

Removal of obstructions other than vessels

39.—(1) This article applies to anything, other than a vessel, causing an obstruction or impediment to the navigation or use of the river lying within the limits of deviation (in this article and article 40 referred to as an “obstruction”) and which the owner of the obstruction, or the owner or occupier of the land, as the case may be, caused or knowingly permitted to become or remain an obstruction.

(2) Subject to paragraph (3), the Agency may after giving not less than 21 days’ written notice to the owner of an obstruction or, if the owner is not known, the owner or occupier of any land on which the obstruction is situated, requiring the owner or occupier to mark, modify or remove the obstruction.

(3) Subject to article 41 (emergency powers and consents), the power conferred by paragraph (2) is not exercisable—

(a) if it is within the powers of A.B. Ports to deal with such obstruction and A.B. Ports decide to do so; and

(b) if the Agency, having given not less than one month’s notice to A.B. Ports, is informed by A.B Ports within that time that A.B. Ports intends to act and it does act within a reasonable time after that.

(4) If the owner of the obstruction, or the owner or occupier of the land, fails to take any action specified by the Agency in a notice pursuant to paragraph (2), the Agency may take that action and recover the reasonable costs of doing so from that person.

(5) In any proceedings by the Agency against any person required to modify, remove or mark an obstruction under paragraph (2) for the recovery of costs which the Agency is entitled to recover under paragraph (4), it is not open to that person to raise any question which could have been raised on a referral to arbitration under article 40 (arbitration in respect of removal of obstructions other than vessels).

(6) The Agency may—

(a) mark an obstruction; or

(b) modify or remove it,

in such circumstances as it considers fit.

(7) Before exercising its powers under paragraph (6), the Agency must, if it is reasonably practicable to do so, give not less than 21 days’ written notice of its intention to the owner or occupier of any land on which the obstruction is situated.

(8) If an obstruction removed by the Agency under this article is so marked as to be readily identifiable as the property of any person, the Agency must within one month of its coming into the Agency’s custody give written notice, in accordance with paragraph (12), to that person and, if possession of the thing is not retaken within the period specified in, and in accordance with the terms of, the notice, it vests in the Agency at the end of that period.

(9) If an obstruction removed by the Agency under this article, which is not marked as described in paragraph (8), is not within 3 months of its coming into the custody of the Agency proved to the Agency’s reasonable satisfaction to belong to any person, it vests in the Agency.

(10) The Agency may at such time and in such manner as it thinks fit dispose of anything referred to in paragraph (9) which is of a perishable nature or the custody of which involves unreasonable expense or inconvenience notwithstanding that at the time it has not vested in the Agency under this article, and if it is sold the proceeds of sale must be applied by the Agency in payment of the expenses incurred by it under this article in relation to the thing, and any balance is—

(a) to be paid to any person who, within 3 months from the time when the thing came into the custody of the Agency, proves to the reasonable satisfaction of the Agency that the person was the owner of the thing at that time; or

(b) if within the period referred to in sub-paragraph (a) no person proves that person’s ownership at that time, to vest in the Agency.

(11) If an obstruction removed by the Agency under this article—

(a) is sold by the Agency and the proceeds of sale are insufficient to reimburse it for the amount of the expenses incurred by it in the exercise of its powers of removal; or

(b) is unsaleable,

the Agency may recover the deficiency or the whole of the expenses, as the case may be, from the person who was the owner at the time when the thing removed came into the custody of the Agency or who was the owner at the time of its abandonment or loss, if that person caused or knowingly permitted the obstruction to be there.

(12) A notice given under paragraph (8) must specify the thing removed and state that, upon proof of ownership to the reasonable satisfaction of the Agency and payment of the reasonable costs of the raising, removal and storage of the thing, possession may be retaken at the place named in the notice within the time specified in the notice, being not less than 14 days after the date when the notice is served.

(13) In paragraph (1), reference to anything causing an obstruction or impediment to the navigation or use of the part of the river lying within the limits of deviation is a reference to anything causing an obstruction or impediment to a vessel of a size customarily navigated or used on that part of the river.