The Port of Bristol (Deep Sea Container Terminal) Harbour Revision Order 2010

PART 1 PRELIMINARY

Citation and commencement

1.—(1) This Order may be cited as the Port of Bristol (Deep Sea Container Terminal) Harbour Revision Order 2010 and shall come into force on 1st September 2010.

(2) The Bristol Dock Acts and Orders 1848 to 1993 and this Order may be cited together as the Bristol Dock Acts and Orders 1848 to 2010.

Interpretation

2.—(1) In this Order—

“the 1847 Act” means the Harbours, Docks and Piers Clauses Act 1847(1) as incorporated with the Bristol Dock Acts and Orders 1848 to 1993;

“the 1990 Act” means the Town and Country Planning Act 1990(2);

“the 1993 Order” means the Port of Bristol Harbour Revision Order 1993(3);

“the 1995 Order” means the Town and Country Planning (General Permitted Development) Order 1995(4);

“AOD” means above Ordnance Datum (Newlyn);

“added pilotage area” means the area described in Schedule 5 (extension of limits of jurisdiction for purposes of pilotage);

“Chart Datum” in relation to any depth of dredging is 6.5 metres below Ordnance Datum (Newlyn);

“the Company” means First Corporate Shipping Limited, a company limited by shares and incorporated under the Companies Act 1985(5), whose registered number is 2542406;

“construction” includes execution and placing and, in its application to works which include or comprise any operation, means the carrying out of that operation but does not include maintenance dredging, and “construct” and “constructed” shall be construed accordingly;

“the deposited plans” and “the deposited sections” mean, respectively, the plans and sections certified by the Secretary of State as the plans and sections for the purposes of this Order;

“the designated harbour” means the area within which the Company had jurisdiction as harbour authority pursuant to article 3 of the 1993 Order immediately before the coming into force of this Order;

“harbour master” means any person appointed as such by the Company under section 51 of the 1847 Act;

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

“Lighthouse” means the disused lighthouse situated at the seaward limit of the North Pier;

“limits of construction activity” means the limits of construction activity shown on sheet 10 of the deposited plans;

“limits of deviation” means the limits of deviation for Works Nos. 1 to 6 shown on the deposited plans;

“limits of deviation for dredging” means the limits of deviation for the operations authorised by article 5 (power to dredge the Severn Estuary) and shown marked “LODD” on the deposited plans;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace and “maintenance” shall be construed accordingly;

“maintenance dredging” means any dredging operations carried out under article 5 (power to dredge the Severn Estuary) in order to maintain the areas referred to in Schedule 3 (dredging works) to their respective depths, widths and positions as set out in that Schedule;

“tidal work” means so much of the works as is on, under or over tidal waters or tidal lands below the level of high water but excluding any operations authorised by article 5 (power to dredge the Severn Estuary) and excluding the projection over waters by booms, cranes and similar plant and machinery operating within the designated harbour;

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

“undertaking” means the harbour undertaking of the Company from time to time, including all real and personal property and works acquired, appropriated or provided by the Company for that purpose;

“vessel” means every description of vessel, however propelled or moved, and includes non-displacement craft, a hovercraft (within the meaning of the Hovercraft Act 1968(6)), a hydrofoil vessel and any other thing constructed or used to carry or propel persons or goods by or across water;

“works” means the works and operations authorised by this Order, or any part of such works.

(2) All situations, points, directions, distances, lengths, dimensions, areas and other measurements stated in this Order shall be construed as if the words “or thereabouts” were inserted after each such situation, point, direction, distance, length, dimension, area or other measurement.

(3) In this Order, references to named breakwaters or piers, or other points, places, structures and apparatus are references to those so named on the Admiralty Chart for the Port of Bristol (No. 1859).

(4) In this Order—

(a) any reference to a work identified by the number of such work shall be construed as a reference to the work of that number authorised by this Order;

(b) map reference points specified shall be construed as references to Ordnance Survey National Grid reference points; and

(c) longitude and latitude are stated by reference to the World Geodetic System (WGS84) Datum.

(5) References in the Bristol Dock Acts and Orders 1848 to 1993 to the undertaking of the Company shall be construed for all purposes as including references to any works carried out and any lands reclaimed by or on behalf of the Company or any of its subsidiaries under or by virtue of this Order.

PART 2 WORKS

Power to construct, etc., works

3.—(1) The Company may, in the lines and situations and on the lands delineated on the deposited plans and within the limits of deviation and according to the levels shown on the deposited sections, construct, operate and maintain the whole or any part or parts of the works set out in Schedule 1(works) on and in the bed and foreshore of the River Severn.

(2) Notwithstanding anything in any other enactment, the Company may for the purpose of constructing the works dismantle, remove, deal with and dispose of the whole or any part or parts of all structures, pipelines and equipment lying within the limits of deviation (including the disused Oil Jetty and the Lighthouse) and any public rights over the same are extinguished.

(3) The Company may from time to time, within the limits of deviation, alter, enlarge, replace, relay, extend or reconstruct temporarily or permanently the works and may maintain and use the same as altered, enlarged, replaced, relayed, extended or reconstructed.

(4) The powers conferred by this article are subject to the restrictions set out in Schedule 2 (restrictions on works).

(5) The Company may authorise any person to carry out the works.

Subsidiary works

4.—(1) The Company may from time to time within the limits of deviation provide, construct, maintain and operate such dock facilities, together with works ancillary to those facilities, as may be necessary or convenient for the purposes of, or in connection with, the construction and maintenance of the works authorised by article 3 or the operation of the undertaking, and for this purpose the Company may construct, maintain and operate (whether temporarily or permanently) pumps, conduits, pipes, manifolds, hydrants, wires, drains, sewage and other treatment plants, mains, cables, substations, telecommunications equipment and other utilities plant, conveyors, cranes, lifts, hoists, container and other cargo handling and haulage equipment and stagings, rail mounted gantries, rubber tyred gantries, vessel power supply facilities, weighbridges, stairs, ladders, stagings, quays, berths, jetties, piers, approaches, catwalks, platforms, pontoons and gangways, buildings, sheds, silos, tanks, offices, workshops, depots, vehicle parking, holding and loading areas, roads and road improvements, road and rail crossings, service, outfall and culvert crossings, pavements, bridges, ramps, culverts, railway tracks, sidings, signals, security barriers, foundations, walls, bunds, fences, gates, paving and surfacing, equipment, machinery, appliances, dredged material washing, grading and weighing facilities, lights and lighting columns, signage, radio masts, CCTV cameras and masts, security installations, navigation signals, marks and lights, and such other port, harbour, dock, wharf or terminal facilities and conveniences as may be necessary or expedient.

(2) Without prejudice to paragraph (1), the Company may within the limits of deviation provide, construct, maintain and use such other works as may be necessary or convenient for the purposes of, or in connection with or in consequence of, the construction, maintenance and use of the works, including—

(a) within the limits of deviation for Works Nos. 1, 2 and 3 works for the accommodation or convenience of vessels (including but not limited to berthing heads, mooring posts, ladders, buoys, bollards, dolphins, fenders, rubbing strips and fender panels, fender units and pontoons);

(b) works to alter the position of apparatus, including mains, sewers, drains, pipes, pipelines, conduits, cables, electrical substations and electrical lines; and

(c) landscaping, habitat creation and other works to mitigate any adverse effect of the construction, maintenance and operation of the works or to benefit or protect any person or premises affected by the construction, maintenance and operation of the works.

(3) For the purpose of, or in connection with, the construction, maintenance and use of the works the Company may—

(a) carry out, within the limits of construction activity and the limits of deviation for dredging and within the areas within which the dredging works authorised by article 5 (power to dredge the Severn Estuary) are authorised to be carried out, such construction activity as may be necessary or expedient, including the temporary placing of materials, plant and equipment and the construction of temporary bunds, accesses, jetties, lighting and pipelines within those areas and the water adjoining those areas;

(b) within the limits of construction activity alter and refurbish the Graving Dock to create pre-casting facilities and facilities for the manufacture of caissons (including the temporary installation and use of hoists, crawler cranes and tower cranes) and construct, maintain and operate temporary construction compounds with concrete batching and aggregate plants, workshops, offices, laboratories and stores, laydown areas, temporary stockpiles and areas for storage of construction materials, plant and equipment, sites for the stationing of caravans for use for the temporary residential accommodation of construction workers and temporary offices, welfare facilities, waste and recycling facilities, foul drainage and sewage treatment facilities and other utilities plant and equipment and vehicle parking;

(c) within the limits of construction activity dismantle, demolish and remove existing oil, kerosene, spirit, molasses, derv and other associated pipelines and construct and install new pipelines in replacement together with all associated manifolds and other equipment, stanchions, supports, bunds and pipebridges; and

(d) within the limits of deviation for dredging and within the areas within which the dredging works authorised by article 5 are authorised to be carried out and within the water adjoining those areas, construct, maintain and use temporary pipelines (including pontoons and booster pumps) on, under or over the surface of the River Severn for the purpose of conveying dredged material from the site of the dredging works authorised by article 5 to the site of Works Nos. 1 to 6.

(4) The Company may from time to time in connection with the construction, maintenance and use of the works abstract, impound and use water from the River Severn, the River Avon and the sea and may discharge surface water into the River Severn and the River Avon, but nothing in this Order authorises the entry into controlled waters of any matters whose entry or discharge into controlled waters is prohibited by section 85 of the Water Resources Act 1991(7).

(5) The powers conferred by this article are subject to the restrictions set out in Schedule 2 (restrictions on works).

Power to dredge the Severn Estuary

5.—(1) The Company may deepen, dredge, scour, cleanse, alter and improve the bed, shores and channels of the River Severn to the extent described in Schedule 3 (dredging works) or as may be required for the purpose of maintaining the works described in that Schedule to enable uninterrupted means of access to the works by vessels and enabling the use of the works at all states of the tide.

(2) The power to dredge described in Schedule 3 includes the power to carry out such additional dredging as may be required to provide side slopes or otherwise secure the dredged areas against siltation, scouring or collapse.

(3) Any materials dredged, taken or collected by the Company in the exercise of the powers of this article (other than wreck within the meaning of Part 9 of the Merchant Shipping Act 1995(8)) shall be the property of the Company and may be used, sold, deposited or otherwise disposed of as the Company thinks fit.

(4) No materials referred to in this article shall—

(a) be disposed of in contravention of the provisions of any enactment relating to the disposal of waste; or

(b) be deposited below the level of high water except within the designated harbour for the purposes of constructing the works or otherwise in such places and in accordance with such conditions and restrictions as may be approved or prescribed by the Secretary of State pursuant to Part 2 of the Food and Environment Protection Act 1985(9).

Power to deviate

6.—(1) In constructing and maintaining the works authorised by article 3(1) (power to construct, etc., works) and in exercising the powers conferred by article 5(1) (power to dredge the Severn Estuary), the Company may deviate laterally from the lines or situations of those works shown on the deposited plans to the extent of the limits of deviation or, for works authorised by article 5(1), to any extent not exceeding the limits of deviation for dredging.

(2) In constructing and maintaining the works authorised by article 3(1) the Company may deviate vertically from the levels of those works shown on the deposited sections to any extent downwards and up to three metres upwards as may be necessary or convenient.

(3) In exercising the powers conferred by article 5(1) the Company may deviate vertically to any extent upwards and up to 0.3 metres downwards as may be necessary or convenient.

Period for completion of works

7.—(1) Subject to paragraph (2), if the works are not completed within ten years from the coming into force of this Order or such extended time as the Secretary of State may, on the application of the Company, allow then, on the expiration of that period, or such extended time (as the case may be), the powers conferred by this Order to the Company for constructing the works shall cease except as to so much of them as is then substantially commenced.

(2) Nothing in paragraph (1) shall apply to any works carried out under paragraph (3) of article 3 (power to construct, etc., works) or article 4 (subsidiary works), or to any maintenance dredging.

Works to be within the district of The City of Bristol

8.—(1) During the period beginning with the date on which this Order comes into force and ending on the accretion date, the area within the limits of deviation shall, to the extent that it is outside the area of The City of Bristol for the purposes of the Control of Pollution Act 1974(10) and the 1990 Act, be annexed to and incorporated with the district of The City of Bristol.

(2) On the accretion date, the area of the whole or so much of the works authorised by article 3 (power to construct, etc., works) and article 4 (subsidiary works) as shall have been completed or substantially completed shall, to the extent that they are outside the area of The City of Bristol, be annexed to and incorporated within the district of The City of Bristol.

(3) In this article, “accretion date” means whichever of the following dates first occurs—

(a) the date when the works referred to in paragraph 2 have been completed; or

(b) the date when the powers conferred by this Order cease to have effect pursuant to article 7 (period for completion of works).

(4) Nothing in this article shall require the performance of any functions under the Ordnance Survey Act 1841(11) until the Company has certified in writing to the Director General of Ordnance Survey that the works have been completed.

Obstruction of works

9.  Any person who, without reasonable excuse—

(a) obstructs any person acting under the authority of the Company in constructing, maintaining or using the works; or

(b) interferes with, moves or removes any equipment used in connection with the construction, maintenance or use of the works,

shall be guilty of an offence and 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

10.—(1) Unless construction has commenced within five years of the coming into force of this Order, a tidal work shall not be constructed 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 in contravention of paragraph (1), the Secretary of State may—

(a) give notice to the Company to remove the tidal work or any part of it and to restore the site of that tidal work to its former condition; or

(b) where necessary remove the tidal work or any part of it and restore the site of that tidal work to its former condition.

(3) Notice given under paragraph (2)(a) shall be in writing and shall be served on the Company, and such service may be effected by transmission to an electronic address and in an electronic form specified by the Company.

(4) If, within 30 days of service of notice given under paragraph (2)(a), the Company has failed to comply with the notice, the Secretary of State may—

(a) execute the works specified in the notice; or

(b) if it appears to the Secretary of State urgently necessary to do so, he may remove the tidal work or part of it and restore the site to its former condition.

(5) Any expenditure incurred by the Secretary of State pursuant to paragraphs (2) to (4) shall be recoverable from the Company.

Provision against danger to navigation

11.—(1) In case of injury to, or destruction or decay of, a tidal work or any part of it, the Company shall as soon as reasonably practicable notify Trinity House 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, without reasonable excuse, the Company fails to notify Trinity House as required by paragraph (1), or to comply in any respect with a direction given under that paragraph, the Company shall be guilty of an offence and 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

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

(2) Where a work consisting—

(a) partly of a tidal work; and

(b) partly of works on or over land above the level of high water,

is abandoned or suffered to fall into decay and the works mentioned in sub-paragraph (b) are in such condition as to interfere or to cause reasonable apprehension that they may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include those works, or any portion of those works, in any notice under paragraph (1).

(3) If, at the end of 30 days beginning with the date on which a notice under this article is served upon the Company, it has 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 the Secretary of State in so doing shall be recoverable from the Company.

Survey of tidal works

13.  The Secretary of State may at any time, if the Secretary of State deems it expedient to do so, 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 so doing shall be recoverable from the Company.

Permanent lights on tidal works

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

(2) If the Company fails to comply in any respect with a direction given under paragraph (1), it shall be guilty of an offence and 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, etc.

15.—(1) The Company shall, at or near a tidal work, during the whole time of the construction, extension, enlargement, alteration, replacement or re-laying of such work exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as the Secretary of State shall from time to time direct.

(2) If the Company fails to comply in any respect with a direction given under paragraph (1), it shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and, on conviction on indictment, to a fine.

Application of permitted development rights

16.  Schedule 4 shall have effect.

PART 3 JURISDICTION

Extension of limits of jurisdiction for the purposes of pilotage

17.—(1) The limits within which the Company shall have jurisdiction for the purposes of pilotage under Part 1 of the Pilotage Act 1987(12) shall include (in addition to the designated harbour) the added pilotage area.

(2) Schedule 5 shall have effect.

PART 4 PROTECTIVE PROVISIONS

Crown rights

18.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the Company to take, use, enter upon or in any manner interfere with any land, hereditaments or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary)—

(a) 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; or

(b) belonging to a Government Department, or held in trust for Her Majesty for the purposes of a Government Department, without the consent in writing of that Government Department.

(2) A consent under paragraph (1) may be given unconditionally or subject to such terms and conditions as may be considered necessary or appropriate.

Saving for Trinity House

19.  Nothing in this Order shall prejudice or derogate from any of the rights, duties or privileges of Trinity House.

For the protection of the Environment Agency

20.  Schedule 6 shall have effect.

For the protection of the Historic Environment

21.  Schedule 7 shall have effect.

For the protection of the Highways Agency

22.  Schedule 8 shall have effect.

PART 5 MISCELLANEOUS AND GENERAL

Works to form part of the undertaking

23.—(1) The works and the bed, banks and shores of the River Severn on which the works are constructed and any lands reclaimed or acquired by the Company for the purpose of the works shall for all purposes form part of the Avonmouth Docks of the Company and of the undertaking.

(2) All enactments conferring rights, powers, privileges or immunities or imposing duties, obligations or liabilities upon the Company or its officers, and all byelaws for the time being in force in relation to the Avonmouth Docks of the Company and in relation to the undertaking, shall so far as relevant, apply to the works and such bed, banks, shores and lands and may be enforced by the Company accordingly.

(3) Nothing in this Order shall affect the operation within the designated harbour of such of the provisions of the 1847 Act as immediately before the coming into force of this Order were operative within the designated harbour and those provisions shall extend to and apply to the works.

Application of byelaws

24.—(1) The Bristol Port General Byelaws 2005 apply, subject to paragraph (2), to the designated harbour as they applied to the designated harbour immediately before the coming into force of this Order, and nothing in this Order shall affect the right of the Company to enforce the byelaws or to amend or revoke them.

(2) In the Bristol Port General Byelaws 2005 as applied by paragraph (1), references to the “harbour premises” shall be construed so as to include the works.

(3) In this article “the Bristol Port General Byelaws 2005” means the byelaws made by the Company on 25 November 2005 and confirmed by the Secretary of State on 1 December 2005(13).

Power to appropriate

25.—(1) Notwithstanding anything in section 33 (harbour, dock, and pier to be free to the public on payment of rates) of the 1847 Act or any other enactment, the Company may from time to time set apart or appropriate the whole or any part or parts of the lands, quays, berths, buildings, facilities, machinery or equipment comprised within Works Nos. 1 to 6 or upon which Works Nos. 1 to 6 are constructed and maintained for the exclusive, partial or preferential use and accommodation of any particular trade, person, activity, vessel or goods or any class of trade, person, activity, vessel or goods, subject to the payment of such charges and subject to such terms and conditions and regulations as the Company may think fit.

(2) No person or vessel shall make any use of any lands, quays, berths, buildings, facilities, machinery or equipment set apart or appropriated under this article without the consent of the harbour master or other duly authorised officer of the Company and the harbour master or such officer may order any person or vessel making use of such lands, quays, berths, buildings, facilities, machinery and equipment without such consent to be removed.

(3) The provisions of section 58 (powers of the harbour master as to the mooring of vessels) of the 1847 Act shall extend and apply to any such vessel.

Defence to proceedings in respect of statutory nuisance

26.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(14) (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine shall be imposed, under section 82(2) of that Act(15) if the defendant shows—

(a) that the nuisance relates to premises used by the Company for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to the construction or maintenance of the works and that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974; or

(b) that the nuisance is a consequence of the construction, maintenance or use of the work and that it cannot reasonably be avoided.

(2) The following provisions of the Control of Pollution Act 1974—

(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990); and

(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded)(16),

shall not apply where the consent relates to the use of premises by the Company for the purposes of, or in connection with, the exercise of the powers conferred by this Order with respect to the construction or maintenance of the works.

Defence of due diligence

27.—(1) In proceedings for an offence under any provision of this Order it shall be a defence for the Company to prove that it took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

(2) If in any case the defence provided by paragraph (1) involves the allegation that the commission of the offence was due to the act or default of another person, the Company shall not, without leave of the court, be entitled to rely on that defence unless, within a period of seven clear days before the hearing, it has served on the prosecutor a notice in writing giving such information identifying, or assisting in the identification of, that other person as was then in its possession.

Certification of plans

28.  The Company shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the deposited sections to the Secretary of State for certification that they are true copies of, respectively, the deposited plans and the deposited sections referred to in this Order, and a document so certified shall be admissible in any proceedings, as evidence of the contents of the document of which it is a copy.

Signed by authority of the Secretary of State for Transport

Richard Bennett

Head of Ports Division

Department for Transport

6th August 2010