The Ouseburn Barrage Order 2007

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 Ouseburn 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 Council may by written notice require the owner of an obstruction or, if he is not known, the owner or occupier of any land on which the obstruction is situated to mark, modify or remove the obstruction.

(3) Subject to article 43 (emergency powers and consents), the power in paragraph (2) shall not be exercisable—

(a) if it is within the powers of the Port Authority to deal with such obstruction and the Port Authority decide to do so; and

(b) if the Council, having given not less than one month’s notice to the Port Authority, is informed by the Port Authority within that time that the Port Authority intends to act and it does act within a reasonable time thereafter.

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

(5) In any proceedings by the Council against any person required to modify, remove or mark an obstruction under paragraph (2) for the recovery of costs which the Council is entitled to recover under paragraph (4), it shall not be 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) Subject to paragraph (13), the Council 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 Council shall, 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 Council under this article is so marked as to be readily identifiable as the property of any person, the Council shall within one month of its coming into the Council’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 shall vest in the Council at the end of that period.

(9) If an obstruction removed by the Council 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 Council proved to the Council’s reasonable satisfaction to belong to any person, it shall vest in the Council.

(10) The Council 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 Council under this article, and if it is sold the proceeds of sale shall be applied by the Council in payment of the expenses incurred by it under this article in relation to the thing, and any balance shall—

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

(b) if within the said period no person proves his ownership at that time, vest in the Council.

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

(a) is sold by the Council 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 Council 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 Council 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) shall specify the thing removed and state that, upon proof of ownership to the reasonable satisfaction of the Council 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) The Council shall not under the powers of this article remove, or require the removal of, or modify, or require the modification of, any obstruction specifically authorised by any enactment or by a works licence granted by the Port Authority under section 5 of the 1990 Act.

(14) In paragraph (1), reference to anything causing an obstruction or impediment to the navigation or use of the part of the Ouseburn 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 Ouseburn.