PART 1 PRELIMINARY

Citation and commencement

1.—(1) This Order may be cited as the Fowey Harbour Revision Order 2021 and shall come into force on 11th March 2021.

(2) The Fowey Harbour Orders 1937 to 2001 and this Order may be cited together as the Fowey Harbour Orders 1937 to 2021.

Interpretation

2.—(1) In this Order—

“the Act of 1847” means the Harbours, Docks and Piers Clauses Act 1847( 6);

“the Order of 1937” means the Fowey Harbour Order 1937( 7);

“the Order of 1960” means the Fowey Harbour Order 1960( 8);

“the Order of 1980” means the Fowey Harbour Revision Order 1980( 9);

“the Order of 2001” means the Fowey Harbour Revision Order 2001( 10);

“the Fowey Harbour Orders 1937 to 2001” means the Order of 1937, the Order of 1980 and the Order of 2001;

“ashore” means all those parts of the harbour which are not constituted of land covered by water at the level of low water;

“the Commissioners” means the Fowey Harbour Commissioners;

“Fowey Harbour Port User Group” means the consultative body of that name established by the Commissioners in accordance with the requirements of article 16 of the Order of 2001;

“general direction” means a direction given under article 4 of this Order;

“harbour” means the harbour as defined in article 3 (interpretation) of the Order of 1937 the limits of which are described in article 22 (limits of Order) of the Order of 1937;

“the harbour master” means any person appointed as such by the Commissioners, and includes the duly authorised deputies and assistants of the harbour master and any other person for the time being authorised by the Commissioners to act, either generally or for a specific purpose, in the capacity of harbour master;

“harbour operations” includes—

“the harbour premises” means land adjacent to the wet harbour area for the time being vested in, or occupied or administered by the Commissioners as part of the harbour undertaking and occupied wholly or mainly for the purposes of activities there carried on, which may include docks, quays, piers, wharves, berths, locks, breakwaters, landing places, yards, roads, carparks, sheds, other buildings and all other works and conveniences, land and premises;

“harbour undertaking” means the undertaking for the time being of the Commissioners as set out in the Fowey Harbour Orders 1937 to 2021;

“hovercraft” means a vehicle which is designed to be supported when in motion wholly or partly by air expelled from the vehicle to form a cushion of which the boundaries include the ground, water or other surface beneath the vehicle;

“jet bike” means any watercraft (not being a structure which by reason of its concave shape provides buoyancy for the carriage of persons or goods) propelled by a water jet engine or other mechanical means of propulsion and steered either—

“land” includes land covered by water except where expressly stated otherwise;

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

“master”, in relation to a vessel, means any person having or taking command, charge, management or conduct of the vessel for the time being;

“special direction” means a direction given under article 7 of this Order;

“Trinity House” means the Corporation of Trinity House of Deptford Strond( 11);

“vehicle” includes any vehicle propelled on rails, any machinery on wheels or caterpillar tracks, trailers, caravans, bicycles, and mobile homes and includes a hovercraft or any other amphibious vehicle;

“vessel” includes a ship, boat, houseboat, raft or water craft of any description, however propelled or moved, and includes non-displacement craft, a jet bike, a personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily);

“wet harbour area” means those parts of the area described in articles 3 (interpretation) and 22 (limits of Order) of the Order of 1937 which are covered by water at the level of low water.

(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.

Incorporation of provisions of Harbours, Docks and Piers Clauses Act 1847

3.—(1) The Act of 1847 (except sections 6 to 26, 28 to 31, 42, 48 to 50, 66, 67, 70, 92 and 101), so far as applicable to the purposes and not inconsistent with the provisions of this Order and the Order of 1937 respectively, is hereby incorporated with this Order and the Order of 1937 subject to the modifications stated in paragraphs (2) to (4) below.

(2) Section 63 of the Act of 1847 shall have effect subject to the modification that for the words from “liable to” to the end of the section there are substituted the words “be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale”.

(3) Section 69 of the Act of 1847 shall have effect subject to the modification that for the words from “shall forfeit” to the end of the section there are substituted the words “shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale”.

(4) In construing the provisions of the Act of 1847 as incorporated with this Order and the Order of 1937 respectively—

(a) the expression “the special Act” means this Order and the Order of 1937 respectively, the expression “the undertakers” means the Commissioners and the expression “the harbour, dock, or pier” shall mean the harbour as defined in article 2(1) of this Order,

(b) for the definition of the word “vessel” in section 3 of the Act of 1847 there shall be substituted the definition of that word in article 2(1) of this Order,

(c) the reference in section 53 of the Act of 1847 to notice of a direction by the harbour master served upon a vessel shall not be construed as requiring the notice to be in writing if in the circumstances it is not reasonably practicable for the harbour master to serve a written notice on the master, and in such circumstances the said reference may be construed as including the communication of the notice orally or otherwise.

PART 2 GENERAL DIRECTIONS AND SPECIAL DIRECTIONS

Power to make general directions as to use of harbour, etc.

4.—(1) The Commissioners may, in accordance with the requirements of article 5 of this Order, give a direction for—

(a) the ease, convenience or safety of navigation,

(b) the safety of persons,

(c) the protection of property, flora or fauna, or

(d) the ease, convenience or safety of harbour operations ashore,

within the harbour.

(2) A direction under this article may apply—

(a) to all vessels or to a class of vessels,

(b) to all vehicles or to a class of vehicle,

(c) to persons designated in the direction,

(d) to the whole of the harbour or to a part, or

(e) at all times or at certain times or at certain states of the tide,

and every direction must specify the extent of its application including its geographical extent in relation to the matters referred to in sub-paragraphs (a), (b), (c), (d) and (e).

(3) The Commissioners may amend or revoke a direction given under paragraph (1).

(4) The Commissioners must keep and make available for inspection at their main office and on their website a public register of all in force general directions( 12).

Procedure for giving, amending or revoking general directions

5.—(1) Subject to paragraph (7), if the Commissioners propose to give, amend or revoke a general direction, they must—

(a) give notice in writing of the proposal and a plan of the area over which the proposal applies to the “designated consultees” them being;

(i) the Chamber of Shipping,

(ii) the Royal Yachting Association,

(iii) the Fowey Port User Group, and

(iv) such other persons or organisations as they consider appropriate for the purposes of the application of this provision,

(b) place a notice of the proposal on the Commissioners’ website and in prominent locations at the Commissioners’ main office on the same date as the notice given in accordance with sub-paragraph (a) and keep that notice on display for a minimum of 6 weeks,

(c) consult with the designated consultees upon the proposal and allow a period of not less than 6 weeks beginning with the date of the notices given in accordance with sub-paragraphs (a) and (b) for written representations to be made by the designated consultees and any other persons to the Commissioners regarding the proposal,

(d) have regard to all representations made during consultation,

(e) give notice in writing to the designated consultees and to those other persons that have provided a consultation response, following consultation as to whether the Commissioners propose to proceed with the proposal and, if so, specifying whether they are making any modifications to the proposal and their reasons for so doing, and,

(f) if the Commissioners propose to proceed with the proposal and a designated consultee has made representations against the proposal, invite that designated consultee to confirm in writing whether they maintain their objection to the proposal within 28 days beginning with the date of the notice given in accordance with sub-paragraph (e), or such longer period as the Commissioners may specify.

(2) Where the Commissioners have complied with paragraph (1), they may proceed to give, amend or revoke a general direction if—

(a) none of the designated consultees have made representations against the proposal,

(b) none of the designated consultees which made representations against the proposal have confirmed in writing that they are maintaining their objection to the proposal in accordance with paragraph (1)(f), or

(c) where a designated consultee has maintained an objection in accordance with paragraph (1)(f), the requirements of paragraph (3) have been complied with.

(3) Where a designated consultee has confirmed in writing to the Commissioners that they maintain their objection to a proposal—

(a) the issue must be referred to an independent person (“the adjudicator”) appointed—

(i) by agreement between the Commissioners and each designated consultee maintaining an objection in accordance with paragraph (1)(f) (“the parties”), or

(ii) failing agreement, by the President of the London Maritime Arbitrators Association on the application of either of the parties,

(b) so far as is reasonably practicable within 12 weeks beginning with the date of the referral, the adjudicator must—

(i) provide a reasonable opportunity for the parties to make representations to or be heard by the adjudicator at a hearing, and

(ii) make a written report to the parties with findings and recommendations on the issue, and

(c) the Commissioners must decide whether to exercise the power to give, amend or revoke the general direction having regard to the adjudicator’s report (but they are not bound to give effect to any recommendations) and, once they have decided, must give notice in writing to the designated consultees and to any other person that provided a consultation response of their decision and the reasons for that decision.

(4) Except as otherwise provided for in paragraph (3), the adjudicator may determine the procedure for the making of representations and the conduct of any hearing.

(5) The costs incurred by the adjudicator and the parties from a referral under paragraph (3) are to be paid by one of more of the parties as the adjudicator may direct.

(6) If the Commissioners wish to exercise the power to give, amend or revoke a general direction in a form materially different from both the form notified to the designated consultees under paragraph (1)(e), and where paragraph (3) applies the form recommended by the adjudicator under paragraph (3)(b), they must proceed, as if the proposal is a new proposal to which paragraph (1) applies.

(7) Paragraphs (1) to (6) do not apply where in the interests of navigational safety, or safety of persons, the Commissioners propose to give or amend a general direction—

(a) in an emergency, or

(b) relating to an intended activity or operation within the harbour which—

(i) is expected to commence within 16 weeks of the Commissioners having been notified or otherwise becoming aware of the intended activity or operation,

(ii) is to last less than 28 days, and

(iii) the Commissioners consider that the giving or amending of a general direction in relation to the intended activity or operation is required, taking into account other activities or operations in the harbour which may be affected.

(8) Where the Commissioners proceed to give or amend a general direction in accordance with paragraph (7), they must—

(a) as soon as is reasonably practicable give notice of the direction or amendment to those persons who would have been designated consultees had paragraph (1)(a) applied, and

(b) if the direction or amendment is intended to continue in force for more than 12 weeks, apply the procedure under paragraphs (1)(c) to (f) and (2) to (6) to the direction or amendment with the following modifications—

(i) a reference to the ‘proposal’ in those paragraphs is to be read as a reference to the direction or amendment, and

(ii) in paragraph (1)(c), for “sub-paragraphs (a) and (b)” substitute “paragraph (8)(a)”, and

(iii) a reference to the Commissioners ‘proceeding’ with a proposal is to be read as a reference to the Commissioners determining that the direction or amendment should remain in force.

Publication of general directions

6.—(1) Subject to paragraph (4), the Commissioners must publish a notice of the giving, amendment or revocation of a general direction as soon as reasonably practicable on one occasion in a newspaper circulating in the area of the harbour and electronically on the Commissioners’ website for the period of 28 days from the date of publication of the notice in the newspaper.

(2) The notice must state a place at which copies of the general direction may be inspected.

(3) The Commissioners must display notices of general directions that apply to harbour premises at prominent locations within the harbour.

(4) In an emergency, the Commissioners may give notice of the giving or amendment of a general direction in any manner which they consider to be appropriate.

Special directions

7.—(1) The harbour master may give a special direction in respect of a vessel anywhere in the harbour for any of the following purposes—

(a) requiring a person to comply with a requirement made in or under a general direction,

(b) regulating or requiring the movement, anchorage, berthing, mooring or unmooring of the vessel,

(c) regulating the loading, discharging, storing and safeguarding of its cargo, fuel, water or stores, and the dispatch of its business at the harbour premises,

(d) specifying the precautions to be taken in respect of apparatus, machinery and equipment,

(e) prohibiting or restricting the use of fires or lights,

(f) regulating the use of ballast,

(g) requiring the removal of the vessel from any part of the harbour if the vessel—

(i) is on fire,

(ii) is in such condition as to be liable to become immobilised or waterlogged, to sink or to constitute a danger to life or property,

(iii) is making an unlawful use of the harbour or interfering with the reasonable use or enjoyment of the harbour by other vessels or persons or the dispatch of business in the harbour, or

(iv) needs to be removed to enable maintenance or repair work to be carried out to the harbour premises,

(h) requiring the vessel be removed to a place outside the harbour if such removal is considered by the harbour master to be necessary in order to avoid danger to life (including wildlife) or to property.

(2) A special direction may be given in any manner considered by the harbour master to be appropriate.

(3) The harbour master may revoke or amend a special direction.

Failure to comply with directions

8.—(1) A person who fails to comply with a general direction or a special direction shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) In any proceedings for an offence under paragraph (1) it shall be a defence for the person charged to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Enforcement of directions

9.—(1) Without prejudice to any other remedy available to the Commissioners, if a special direction is not complied with within a reasonable time, the harbour master may put persons on board the vessel to carry out the direction or may otherwise cause the vessel to be handled in accordance with the direction.

(2) If there is no one on board a vessel to comply with a special direction, the harbour master may proceed as if the direction had been given and not complied with, provided that the powers of this paragraph shall not be exercised—

(a) in relation to a vessel other than a lighter unless, after reasonable inquiry has been made, the master cannot be found, or

(b) in relation to a lighter unless it is obstructing or interfering with navigation.

(3) Expenses incurred by the Commissioners in the exercise of the powers conferred by paragraph (1) shall be recoverable by the Commissioners as if it were a charge of the Commissioners in respect of the vessel.

Master’s responsibility in relation to directions

10.  The giving of a general or special direction shall not diminish or in any other way affect the responsibility of the master of the vessel to which the direction is given in relation to the vessel, to persons on board the vessel, to the cargo or any other person or property.

Saving for existing directions, byelaws etc.

11.  Any harbour direction, special direction, byelaw, regulation, licence, lease, consent or other agreement made, issued, entered into or granted by the Commissioners in relation to the harbour undertaking and in force immediately on or before the date on which this Order comes into force, shall, notwithstanding the amendments, revocations and repeals set out in articles 13, 14, 18, 19 and in the Schedule to this Order, continue to have effect.

PART 3 MISCELLANEOUS AND GENERAL

Licensing of Boatmen and vessels

12.—(1) The Commissioners may grant upon such terms and conditions as they may think fit licences for vessels to be let for hire or to be used for carrying no more than 12 passengers for hire, and to the persons in charge of or navigating such vessels, and may charge for each type of licence such annual fee as appears to them to be appropriate.

(2) Any such licence may be granted for such period as the Commissioners may think fit, and may be suspended or revoked by the Commissioners whenever they shall deem such suspension or revocation to be necessary or desirable in the interests of the public provided that the existence of the power to suspend or revoke the licence shall be made clear in the licence itself.

(3) No person shall let for hire any such vessel not so licensed or at any time during the suspension of the licence for the vessel, nor shall any person carry or permit to be carried passengers for hire in any such vessel unless—

(a) the vessel is so licensed and the licence is not suspended; and

(b) the person in charge of the boat or vessel and any other person navigating it is so licensed and the licence is not suspended and the conditions of the licence are complied with.

(4) A licence under this section shall not be required for any vessel duly licensed by or under any regulations of the Maritime and Coastguard Agency or for a person in charge of or navigating such a vessel.

(5) No person shall carry or permit to be carried in any such vessel a greater number of passengers for hire than shall be specified in the licence applying to such vessel, and every owner of any such vessel shall, before permitting the same to be used for carrying passengers for hire, display, on a conspicuous part of the said boat or vessel, the owner’s name and also the number of persons which it is licensed to carry, in the form “Licensed to carry X persons.”

(6) Every person who acts in contravention of the provisions of this article shall for each offence be liable to a penalty not exceeding level 3 on the standard scale but a person shall not be guilty of an offence under this sub-paragraph by reason of their failure to comply with such conditions as are mentioned in sub-paragraph 3(b) of this article if it is shown that there is a reasonable excuse for the failure.

(7) Any person deeming themselves to be aggrieved by the withholding, suspension, or revocation of any licence under the provisions of this article may appeal to the Maritime and Coastguard Agency( 13) within six weeks after such withholding, suspension, or revocation, provided that the person so aggrieved shall give twenty-four hours written notice of such appeal, and the relevant grounds, to the Commissioners, and the Maritime and Coastguard Agency shall have the power to make such order as it sees fit and to award costs, such costs to be recoverable summarily as a civil debt.

(8) In sub-paragraphs (1) and (3) of this article “let for hire” means let for hire to the public.

Amendment of the Order of 1937 to clarify the harbour limits

13.—(1) The Order of 1937 is amended as follows—

(a) in article 3;

(i) in the definition of “the harbour” omit “land buildings works plant property and conveniences” and substitute “the harbour premises and plant”;

(ii) insert between the definitions of “The Minister” and “Vessel”, ‘“the Order of 2021” means the Fowey Harbour Revision Order 2021( 14);

(iii) insert between the definitions of “The harbour” and “The harbour undertaking”, “The harbour premises” means land adjacent to the wet harbour area for the time being vested in, or occupied or administered by the Commissioners as part of the harbour undertaking and occupied wholly or mainly for the purposes of activities there carried on, which may include docks, quays, piers, wharves, berths, locks, breakwaters, landing places, yards, roads, carparks, sheds, other buildings and all other works and conveniences, land and premises;

(iv) insert after the definition of “Statutory Security”, ““wet harbour area” means those parts of the area described in articles 3 and 22 of this Order which are covered by water at the level of low water”.

(b) In article 22 insert ‘the harbour premises and’ between the words ‘comprise’ and ‘the harbour of Fowey’.

(2) The Commissioners must keep, and make available for inspection at their main office and on their website within the period of 30 days beginning with the day on which this Order comes into force, an illustrative plan( 15).

(3) The Commissioners must update the illustrative plan to reflect any alterations to the extent of the harbour premises within the period of 30 days beginning with the day on which the alterations are made.

(4) In this article—

“illustrative plan” means a plan showing, for illustrative purposes only, the harbour limits and harbour premises as described in article 22 of the Order of 1937.

Amendment of Order of 2001 to update the constitution of the Commissioners

14.  The Order of 2001 is amended as follows—

(a) in article 4(1)(a) for “six” substitute “nine”,

(b) omit article 4(1)(b),

(c) in article 4(2) omit “and (b)” and “or the Restormel Borough Council”,

(d) in article 4(3) omit “or (b)”,

(e) in articles 4(2) and 4(3) for “each appointing body” in each place in which they occur substitute “the Commissioners”,

(f) in article 6 omit “or (b)”,

(g) for article 8(1) substitute—

“(1)  A casual vacancy arising in the office of a Commissioner shall, unless it is not reasonably practicable to do so, be filled by the appointment of a Commissioner in accordance with article 4(2) and (3) above. ”, and

(h) in Schedule 2 paragraphs 1, 4, 7, 8(1) and 11(5) omit “or b” in each place where they occur.

Saving for Trinity House

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

Crown Rights

16.—(1) Nothing in this Order shall—

(a) prejudicially affect any estate right, power, privilege, authority or exemption of the Crown,

(b) authorise the Commissioners or any licensee to take, use, enter upon or in any manner interfere with any land or interests in land or any rights of whatsoever description (including any part of the shore or bed of the sea or of any river, channel, creek, bay or estuary) belonging to—

(i) Her Majesty in right of the Crown and under the management of the Crown Estate Commissioners without the prior consent in writing of those Commissioners, or

(ii) 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)(b) may be given unconditionally or subject to such conditions and upon such terms as may be considered necessary or appropriate.

Notices

17.—(1) Except where this Order expressly provides otherwise a notice or other document required or authorised to be given for the purposes of this Order, or any direction given under this Order, must be in writing and must be sent by first class post.

(2) Where the person on whom a notice or other document to be sent for the purposes of this Order is a body corporate, the notice or document is duly given if it is given to the secretary or clerk of that body.

(3) Where a person on whom a notice or other document is to be given has agreed in writing that notices may be given by email, or other electronic means, the Commissioners may provide notices by that means until such time as the person informs them in writing that they are no longer willing to receive notices or documents by email or by such other electronic means.

(4) For the purposes of section 7 of the Interpretation Act 1978( 16) as it applies for the purposes of this article, the proper address of a person in relation to the giving of a notice or document under paragraph (1) is, if they have given an address for service that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body, and

(b) in any other case, their last known address at the time of service.

(5) Where for the purposes of this Order a notice or other document is required or authorised to be given on a person whose name and address cannot be ascertained after reasonable inquiry—

(a) in the case of a notice or document to be served on a person as having an interest in or as the occupier of, any land, it may be given by—

(i) addressing it to them by name or by the description of “owner”, or as the case may be occupier”, of the land (describing it), and

(ii) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land,

(b) in the case of a notice or document relating to a vessel (including a wreck), it may be given by exhibiting it in a conspicuous position on or near the vessel (unless it would not be reasonably practicable to exhibit the notice or document in this manner or if the notice or document would not be likely to be seen if it were so exhibited) or by handing it to a member of the crew, and

(c) in the case of any other notice or document or a notice or document that is not capable of being given pursuant to sub-paragraph (b) it may be given by displaying it at the office of the harbour master for the period of its duration.

Further amendments to the Order of 1937 and the Order of 1980

18.—(1) The Order of 1937 is amended as follows—

(a) in article 3 omit the definition of “Vessel” and substitute ““Vessel” has the same meaning as the definition of “Vessel” in article 2(1) of the Order of 2021”( 17),

(b) omit article 4(1)(c).

(2) The Order of 1980 is amended as follows—

(a) in article 4 for “£50” substitute “not exceeding level 3 on the standard scale”.

Revocation/Repeal

19.  On the date this Order comes into force, the enactments mentioned in the first and second columns of the Schedule to this Order shall be revoked or repealed (as appropriate) to the extent specified in the third column of that Schedule.

Article 19

SCHEDULE REVOCATION / REPEAL

EXPLANATORY NOTE

(This note is not part of the Order)

This Order empowers the Fowey Harbour Commissioners (“the Commissioners”) as harbour authority for Fowey Harbour to clarify the limits of the harbour to expressly include the harbour premises (article 13). An illustrative plan (defined in article 13) showing the harbour limits and the harbour premises may be inspected during working hours at the Commissioners main office at Albert Quay, Fowey PL23 1AJ.

The Order confers on the Commissioners and the harbour master (defined in article 2) powers of general and special direction for the regulation and management of the harbour (articles 4 to 10).

The powers of general direction are extended to include the regulation of vehicles in the harbour and provision is made of a register of all in force general directions which may be inspected during working hours at the main office of the Commissioners (article 4).

The Order creates an offence of failing to comply with special or general directions, the penalty for which is a fine on summary conviction not exceeding level 4 on the standard scale (article 8).

A defence of due diligence is available to a person charged under article 8 (article 8(2)).

The Order confers on the Commissioners powers related to the licensing of boatmen and vessels (article 12) and updates the constitution of the Commissioners to remove the requirement for Cornwall Council to appoint Commissioners to reflect current arrangements (amendment of articles 4, 6 and 8 and Schedule 2 of the Order of 2001) (article 14).

The Order also makes amendments to articles 3 and 4 of the Order of 1937 to update the definition of vessel and to omit article 4(1)(c) which is no longer required as a result of article 3 of the Order (incorporation of provisions of Harbours, Docks, and Piers Clauses Act 1847). The Order also amends article 4 of the Order of 1980 to update the level of fine to level 3 on the standard scale (article 18).

The Order also revokes/repeals the Pier and Harbour Order (Fowey) Confirmation Act 1960 in its entirety and article 5 of the Order of 2001 (article 19).

A full impact assessment has not been produced for this instrument as no, or no significant impact on the private, voluntary or public sector is foreseen.

An explanatory memorandum is available alongside the instrument on the UK Legislation website atwww.legislation.gov.uk.