Harbour Revision (Consolidation) Order

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About this project

Purpose

Caledonian Maritime Assets Ltd (CMAL) intend to promote a Harbour Revision (Consolidation) Order, and the purpose of this page is to:—

• Provide information regarding harbour authorities, relevant legislation, and the national standard for every aspect of port marine safety.
• Provide information regarding the CMAL harbours, the current legislative framework in place and the challenges experienced.
• Set out CMAL’s proposals and demonstrate the need to promote harbour legislation that updates all existing legislation across all CMAL harbours.

CMAL as Statutory Harbour Authority

CMAL is the Statutory Harbour Authority at 16 of its harbour/port locations, in addition CMAL operates a further 11 marine facilities across the West Coast of Scotland servicing the Clyde and Hebridean Ferry Services alongside a wide range of leisure and commercial customers.

What is a Harbour Authority?

A Statutory Harbour Authority is a body which has been given statutory powers or duties through local legislation for the purpose of improving, maintaining, and managing a harbour or port. 

The Harbours Act 1964

National legislation is legislation which is national, as opposed to local, in its effects. The Harbours Act 1964 is an important piece of national legislation affecting Statutory Harbour Authorities.

The 1964 Act:—

• Provides the legal framework to apply for various types of orders.
• Modernised the system whereby harbour authorities may levy charges or dues on those using the harbour, and a procedure is laid down by the Act for making objections to ship, passenger, and goods dues (see sections 26-39).
• Provision of harbour directions.
• Delegation of certain functions.
• Places a duty on Statutory Harbour Authorities to have consideration to environmental matters, including conservation, freedom of public access to places of natural beauty and the availability of facilities for visiting buildings, etc. of archaeological, architectural or historic interest.

The above is not a comprehensive list of functions contained within the 1964 Act.

Types of Orders include:

Local Legislation

Authorities derive their basic statutory powers and duties from local legislation. Until 1964, this legislation was always in the form of a private Act of Parliament (or in an order contained in, and confirmed by, an Act of Parliament). The Harbours Act 1964 introduced a system whereby such powers and duties can be conferred or varied by an order in the form of a statutory instrument, made by Scottish Ministers.

Many Harbour Authorities were established by a private Act of Parliament, often in the nineteenth century (or earlier).

In many cases, a Statutory Harbour Authority’s local legislation will consist of several different Acts or Orders, passed or made over a considerable period of time.

Additional legislation may have been required, for example, to authorise the construction of new harbour works such as piers or jetties, to modernise the powers to regulate the harbour or (more recently) to expand the range of activities which the authority may carry on at, or in connection with, the harbour.

These later pieces of legislation will often have repealed provisions in earlier Acts or Orders relating to the Statutory Harbour Authority. Care should therefore be taken in examining a Statutory Harbour Authority’s legislation to ensure that a provision has not been repealed or amended by a later piece of legislation.

The Port Marine Safety (the Code)

The Code sets out a national standard for every aspect of port marine safety. Its aim is to enhance safety for everyone who uses or works in the UK port marine environment. It is endorsed by the UK Government, the devolved administrations and representatives from across the maritime sector and, while the Code is not mandatory, these bodies have a strong expectation that all Harbour Authorities will comply.

The Code is applicable to Statutory Harbour Authorities, Competent Harbour Authorities and to other marine facilities which may not have statutory powers and duties.

The Code refers to some of the existing legal duties and powers that affect organisations in relation to marine safety, but it does not in itself create any new legal duties. Although they are not mandatory, there are nevertheless several measures which are key to the successful implementation of the Code to ensure compliance.

The code can be accessed online:—

Port Marine Safety Code (publishing.service.gov.uk)

CMAL legislation and the Code

The Code applies to CMAL at all 27 marine facilities owned by CMAL, with CalMac operating 26 of these facilities under the Harbour Operating Agreement (HOA).

The CMAL Board of Directors is the Duty Holder under the Code, and have appointed an independent Designated Person, who reports to the Board.

Despite no statutory powers at the remaining 11 marine facilities, CMAL must comply with the Code at these locations, as marine operations are being undertaken, namely:

17. Bullhole/Dhearg Phort
18. Claonaig
19. Colintraive
20. Cumbrae
21. Fishnish
22. Gallanach
23. Kerrera
24. Kilchoan
25. Portavadie
26. Rhubodach
27. Tobermory

Since its inception, CMAL has promoted five Harbour Revision Orders (HRO’s) and one Harbour Empowerment Order (HEO).

A review of legislation has identified that CMAL currently have over 50 pieces of local legislation that relate to the 16 CMAL harbours where statutory powers are in place. The oldest statutory legislation dates back to 1832 at Largs.

As a result of such a variety of legislation, it has proved difficult to promote a consistent legislative platform for CMAL to manage the harbours.

Outcomes of Recent Reviews and Audits

The Code requires that the duty holder (CMAL Board) must regularly review and be aware of their existing powers based on local and national legislation, seeking additional powers if required to promote safe navigation.  This was re-enforced when a recent Code audit recommended that a review of powers & duties be undertaken for all CMAL’s SHA locations.

The subsequent review of the 16 CMAL harbour orders identified inconsistencies with respect of powers and duties at CMAL harbours.

Due the range, age, and extent of legislation at the 16 harbours where there is statutory legislation in place there are many differing powers, scope and definitions. Many of these are of no significant importance and do not materially affect CMAL’s ability to meet its duties as a SHA and compliance with the Code.  However, there are some areas where that could affect CMAL’s ability to comply with the Code, namely:

• Powers of General Direction
• Definition of Harbour Masters
• Inconsistencies in local legislation

The CMAL board as Duty Holder have approved the promotion of a Harbour Revision (Consolidation) Order.

CMAL Harbour Revision (Consolidation) Order

The proposed strategy for delivering a Harbour Revision (Consolidation) Order would be to promote the order to cover CMAL’s 16 existing Statutory Harbour Authorities as the initial phase.  The second phase, once the order is in place, will be to promote a Harbour Empowerment Order to add 10 of CMAL’s non-statutory facilities to the order.  The second phase will, in essence, only be adding new harbour areas to the consolidation order, as the powers, duties etc., will remain unchanged.

The consolidation order will provide the appropriate legal framework for CMAL to introduce network-wide standard General Directions to assist in meeting our statutory obligations.

Additional Benefits of the Harbour Revision (Consolidation) Order:

• CMAL will be consistently supported in Law to deliver all of its harbour authority obligations.
• The provision of standard Byelaws and General Directions are more robust. This provides the appropriate framework for the operation, management and improvement of the harbours.
• Can lay moorings and Aids to Navigation.
• Powers of wreck removal and power to recover associated costs from the owner.

Programme

It is anticipated that delivering the Harbour Revision (Consolidation) Order will take between 2 and 3 years from January 2024. 

Full consultation and engagement will commence Spring 2024.

Process

Transport Scotland manage the harbour orders process, they provide guidance on their website, the link is below:

Harbour orders | Transport Scotland

CMAL intend to fully consult and engage at all CMAL harbour locations in the pre-application consultation process.

Harbour Revision Orders

Alongside the development of the Harbour Revision (Consolidation) Order, improvement works at some CMAL harbours will continue, which may necessitate further Harbour Revision Orders.

The further revision orders will be works orders only (as far as possible) and incorporate existing legislation. The HR(C)O is not a Works Order and does not authorise any works.

Details of these will be included within each engineering project page.

These revision orders will be undertaken in a manner that ties in closely with the harbour revision (consolidation) order work where possible.

Useful Links

• Harbour orders | Transport Scotland (transport.gov.scot)
• Port Marine Safety Code [PDF] (publishing.service.gov.uk)
• Harbours Docks and Piers Clauses Act 1847 [PDF] (legislation.gov.uk)
• Harbours Act 1964 [PDF] (legislation.gov.uk)

Contact CMAL

If you would like to contact CMAL at this time, please email:

harbourorders@cmassets.co.uk

Please be aware that the process is in its very early stages, and there will be many opportunities to engage with the CMAL team.