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An Act to confirm a Provisional Order under the Private Legislation Procedure (Scotland) Act 1936, relating to Highland Regional Council (Harbours).
[25th July 1991]
Whereas the Provisional Order set forth in the Schedule hereunto annexed has been made by the Secretary of State under the provisions of the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936, and it is requisite that the said Order should be confirmed by Parliament:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
The Provisional Order contained in the Schedule hereunto annexed is hereby confirmed.
This Act may be cited as the Highland Regional Council (Harbours) Order Confirmation Act 1991.
Part I
Preliminary
1. Short title.
2. Interpretation.
Part II
Duties and powers of the Council
3. Harbours jurisdiction.
4. Power to dredge.
5. Works in harbour areas.
6. Reclamation of land.
7. Power to sell or lease works.
8. Power to lease wharves, warehouses, etc.
9. Power of Council in relation to harbours areas.
10. Power to provide and operate fish markets.
11. Moorings.
12. Provision of vessels.
13. Accommodation for customs officers.
14. Reserve fund.
Part III
Regulation of harbour areas
15. Restriction of works and dredging.
16. Licensing of works.
17. Licence to dredge.
18. Appeals in respect of works or dredging licence.
19. Removal of obstructions.
20. Removal of unserviceable vessels.
21. Removal of vehicles at harbour premises.
22. Powers with respect to disposal of wrecks.
23. Protection of Crown interest in wrecks.
24. Power to appropriate lands and works for particular trades, etc.
25. Power to hire out plant.
26. Licensing of tugs.
27. Declaration of draught, etc., of vessel.
28. Boarding vessels.
29. Power to give directions.
30. Failure to comply with directions.
31. Enforcement of directions.
32. General byelaws.
33. Special responsibility for damage by vessel.
34. Obstruction of officers, etc.
35. Power to detain vessels, etc., in certain circumstances.
36. Repair of piers, landing places, etc.
37. Tidal works to be deemed within district.
38. Access to harbour areas.
Part IV
Charges
39. Charges other than ship, passenger and goods dues.
40. Liability for charges.
41. Account of goods.
42. Repair of piers, landing places, etc.
43. Recovery of charges by seizure, etc.
44. Exemptions, rebates, etc., in respect of charges.
45. Security for charges.
46. Weighing, etc., of goods for charging purposes.
47. Liens for charges.
48. Refusal to pay charges for landing places.
49. Exemptions from charges.
50. Conditions as to payment of charges.
Part V
Miscellaneous
51. Tidal works not to be executed without approval of Secretary of State.
52. Lights on tidal works during construction.
53. Permanent lights on tidal works.
54. Survey of tidal works.
55. Provision against danger to navigation.
56. Abatement of works abandoned or decayed.
57. Provision for life-saving.
58. Sections of Act of 1937 disapplied.
59. For protection of Scottish Hydro-Electric plc.
60. For protection of British Telecommunications plc.
61. Saving for certain enactments, etc.
62. Saving for town and country planning.
63. Crown rights.
64. Repeals.
Schedules:
Schedule 1
Harbour areas.
Schedule 2
Enactments repealed.
Provisional Order to make further and better provision for the administration, improvement and regulation of the harbours controlled by the Highland Regional Council; and for connected purposes.
WHEREAS—
(1) Under the [1973 c. 65.] Local Government (Scotland) Act 1973 the Highland Regional Council (hereinafter referred to as “the Council”) are the authority charged with the administration of local government in the Highland Region:
(2) The harbours at Armadale, Aultbea, Balintore, Broadford, Brora, Culkein Drumbeg, Dunbeath, Elgol, Gairloch, Helmsdale, John O'Groats, Keiss, Kinlochbervie, Kyle of Lochalsh, Kyleakin, Kylesku, Lochinver, Nairn, Old Dornie, Plockton, Portmahomack, Portree, Raasay, Sconser, Shieldaig, Thurso and Uig, are by virtue of section 154 of the said Act vested in the Council:
(3) It is expedient that the administration and control of the aforesaid harbours, at present governed by various and disparate enactments, be co-ordinated so far as possible, and that the further provisions of this Order should be enacted:
(4) It is further expedient that the limits of harbour jurisdiction at the said harbours should in present circumstances be redefined and in relation to certain of them extended:
(5) Plans showing the limits of harbour jursidiction at the harbours and marked “Harbour Limits Plans” were deposited in the month of November 1987 in Parliament, at the offices of the Council, at the offices of the district councils of Caithness, Sutherland, Ross and Cromarty, Skye and Lochalsh, Lochaber, Inverness, Badenoch and Strathspey and Nairn, at the office of the Secretary of State in Edinburgh and at the Department of Transport:
(6) The purposes of this Order cannot be effected without an Order confirmed by Parliament under the provisions of the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936:
Now therefore, in pursuance of the powers contained in the said Act of 1936, the Secretary of State orders as follows:—
This Order may be cited as the Highland Regional Council (Harbours) Order 1991.
In this Order, except where the context otherwise requires—
“charges” means charges, dues and tolls of every description for the time being payable under any enactment to the Council in relation to the undertaking;
“the Council” means the Highland Regional Council;
“direction” means a direction given under section 29 below;
“dredging licence” means a licence granted under section 17 below;
“harbour area” means a sea area within which the Council for the time being exercise jurisdiction as a harbour authority under section 3 below and includes harbour premises adjacent thereto;
“harbour limits plans” means the plans referred to in paragraph (5) of the Preamble to this Order;
“harbourmaster” means any person appointed as such pursuant to section 3 below, and includes his deputes and assistants and any person for the time being authorised by the Council to act, either generally or for a specific purpose, in the capacity of harbourmaster;
“harbour premises” means the quays, piers, landing places, and all other works, land and buildings for the time being vested in or occupied or administered by the Council as part of the undertaking;
“hovercraft” has the same meaning as in the [1968 c. 59.] Hovercraft Act 1968;
“hydrofoil vessel” means a vessel, however propelled, designed to be supported on foils;
“land” includes land covered by water, and any interest in land or any servitude or right in, to or over land;
“the level of high water” means the level of mean high-water springs;
“licensee” means a person in whose favour a works licence, or as the case may be a dredging licence, has been granted and is in operation;
“master” in relation to a vessel, means any person for the time being having or taking the command, charge or management thereof;
“public telecommunications operator” has the meaning assigned to it by section 9 (3) of the [1984 c. 12.] Telecommunications Act 1984;
“the sheriff” means any of the sheriffs appointed for the sheriffdom of Grampian, Highland and Islands;
“telecommunication apparatus” has the meaning assigned to it in paragraph 1 (1) of Schedule 2 of the Telecommunications Act 1984;
“tidal work” means so much of—
any work belonging to or vested in the Council; or
any other work authorised by or under this Order;
as is on, under or over tidal waters or tidal lands below the level of high water in a harbour area;
“the undertaking” means the harbour undertaking of the Council as from time to time authorised;
“vessel” means every description of vessel, however propelled or moved, and includes—
any thing constructed or used to carry persons or goods by water;
any rig, platform or other man-made structure on or in navigable water;
a seaplane on or in the water, a hovercraft and a hydrofoil vessel;
any other structure capable of floating on water (or which would be so capable if in proper repair) and used or capable of being used for human habitation;
but does not include any houseboat constructed for or used by five or less persons;
“works” means works of every description, including, except for the purposes of sections 15 and 16 below, moorings and includes the reclamation of land reasonably required for the purpose of executing works;
“works licence” means a licence granted under section 16 below.
(1) The Council shall exercise jurisdiction as a harbour authority within the meaning of section 57 of the [1964 c. 40.] Harbours Act 1964, and the powers of the harbourmaster shall be exercisable, within the harbour areas the respective limits of which are described in Schedule 1 to this Order.
(2) In the event of any discrepancy between the harbour limits as described in Schedule 1 to this Order and the limits shown on the harbour limits plans, the limits as described in the said Schedule shall be deemed to be correct and shall prevail.
(3) For and incidental to the performance of their functions under this Order, the Council may employ and appoint harbourmasters.
(4) The Council shall, within each of the harbour areas, be a local lighthouse authority within the meaning of section 634 of the [1894 c. 60.] Merchant Shipping Act 1894.
(1) The Council may from time to time, as may appear to them to be necessary or desirable for the purposes of the undertaking, deepen, widen, dredge, scour and improve the bed and foreshore of a harbour area, and may blast any rock in that area.
(2) Subject to the provisions of section 63 below, any materials (other than wreck within the meaning of Part IX of the Merchant Shipping Act 1894) taken up or collected in the course of such operations shall be the property of the Council and may be used, sold, removed, deposited or otherwise disposed of as the Council may think fit:
Provided that the Council shall not lay down or deposit any materials—
(a) below the level of high water except in such position as the Secretary of State may approve and subject to such conditions and restrictions as he may impose; or
(b) in such place or manner as to cover any subaqueous telecommunication apparatus belonging to or used by a public telecommunications operator or to impede in any way the inspection, maintenance, removal or renewal of any such telecommunication apparatus; or
(c) so as to obstruct or impede any work of, or connected with, the inspection, maintenance, removal, replacement, alteration, renewal or repair of any electrical plant or electric line (as respectively defined in section 64 of the [1989 c. 29.] Electricity Act 1989) belonging to or used or maintained by Scottish Hydro-Electric plc, or so as to affect the efficient operation thereof, except with the consent of that company.
(3) The Council shall give notice in writing to a public telecommunications operator as early as possible, and in any event not less than 28 days, before exercising any of the powers conferred by subsection (1) above within a distance of 50 metres, or, in the case of blasting operations, 150 metres, of any subaqueous telecommunication apparatus belonging to or used by a public telecommunications operator.
(1) The Council may from time to time maintain, renew, alter or remove temporarily or permanently all works now or hereafter executed or acquired by them in a harbour area:
Provided that nothing in this subsection shall—
(a) authorise the Council to deviate laterally or vertically beyond the limits of deviation prescribed by any enactment authorising the execution of those works; or
(b) relieve the Council from the obligation to obtain the consent of any government department, body or person to the execution of works which consent they would, but for this subsection, have been liable to obtain.
(2) The Council shall obtain the approval of the Commissioners of Northern Lighthouses before placing in or near a harbour area a buoy, beacon, light or other device of any nature designed to assist or regulate navigation.
(3) Any electrical works or equipment constructed, erected, laid down, maintained, worked or used pursuant to the powers conferred by this section or to any of the enactments repealed by this Order shall be so constructed, erected, or laid down, and so maintained, worked and used that any electricity generated or conveyed by or used in or in connection with any such works or equipment does not cause interference (whether by induction or otherwise) with—
(a) any telecommunication apparatus belonging to or used by a public telecommunications officer or with the telecommunication by means of any such apparatus;
(b) any electrical plant or electric line (as respectively defined in section 64 of the Electricity Act 1989) belonging to, or used or maintained by, Scottish Hydro-Electric plc.
Subject to the provisions of this Order, the Council may within any of the harbour areas fill up, raise, enclose and reclaim land from the sea and the bed and foreshore of the harbour and for that purpose may place such piles and construct such groynes, retaining walls and other works in and upon the sea, bed and foreshore as the Council deem necessary:
Provided that the Council shall not exercise the powers of this section—
(a) in relation to any land not owned by them unless they first obtain a consent in writing of the owner thereof; or
(b) in relation to any part of the harbour in front of or adjoining land belonging to Her Majesty in right of Her Crown or to a government department or held in trust for Her Majesty for the purposes of a government department and protected by section 63 below of this Order, without the consent in writing of the Crown Estate Commissioners or, as the case may be, that government department.
(1) The Council may, with the consent in writing of, and upon such terms, conditions and restrictions (and in the case of a lease for such period) as may be approved by, the Secretary of State, sell or lease works in a harbour area.
(2) As from such sale or the commencement of such lease the purchaser, to the extent authorised by his conveyance, or the lessee during and to the extent provided in his lease, shall have and may exercise in relation to the works all or any of the powers conferred upon the Council by this Order, and shall in respect of the works be subject to all the restrictions, liabilities and obligations to which the Council are subject, and shall perform all the duties of the Council under this Order in respect of the works.
(3) No lease made under this section shall be assignable without the previous consent in writing of the Secretary of State, and the provisions of this section with respect to such lease or the lessee shall apply to any such assignation or to the assignee respectively.
The Council may lease or grant the use or occupation of any warehouses, buildings, wharves, yards, cranes, machines or other conveniences provided by them at such rents and upon such terms and conditions as shall be agreed upon between the Council and the persons taking the same.
The following provisions shall have effect as regards any harbour area:—
(a) The Council may provide and supply or contract with others for the provision and supply of fuel, ice, water, chandlery and marine equipment for the bunkering and service of any vessel entering and using any harbour area;
(b) The Council may let upon hire (with or without the services of their employees) to such persons, at such places and on such terms as they think fit any vessel, plant, equipment or other property belonging to them;
(c) The Council may make arrangements for the handling, sale, storage, processing and trans-shipment of fish or fish products and other goods or cargo passing through any harbour area;
(d) The Council may provide warehouses, workshops, slipways and services for marine repairs and ancillary works or contract with others for the provision of such facilities or services;
(e) The Council may recover such reasonable charges for services and facilities provided by them in, or in connection with, the harbour as they may from time to time determine.
(1) The Council may in relation to any harbour area provide, operate and maintain a market for the sale of fish with all such appliances and fittings as they deem necessary and suitable for the purposes thereof, and may—
(a) divide or allocate any parts thereof into stalls or other defined or limited places;
(b) in connection with such market provide and operate such services and facilities as may be requisite or expedient;
(c) fix and regulate the hours during which the market or any part thereof shall be open;
(d) recover such reasonable charges as they think fit for the use of the market and for such services and facilities.
(2) The Council may, for such consideration and upon such terms and conditions, subject to such restrictions and for such periods as they think fit, sell, feu, lease, excamb or otherwise dispose of the whole or any part of the lands forming a fish market or part thereof and may enter into and carry into effect agreements with respect to any offices, stalls and ancillary buildings in connection therewith.
(1) The Council may, as they consider necessary or desirable for the convenience of vessels, provide, place, lay down, maintain, renew, use or remove moorings, buoys and similar apparatus on land owned or leased by them or in which they hold an appropriate interest within a harbour area.
(2) The Council may from time to time grant a licence to any person to place, lay down, maintain, renew and use moorings, buoys and similar apparatus for vessels in a harbour area:
Provided that—
(a) nothing in any such licence shall entitle a person to place, lay down, maintain or use any mooring on land not owned or leased by him or by the Council or in which he has no appropriate interest;
(b) the Council shall not unreasonably refuse to grant a licence to an owner or lessee of any land not leased by the Council to place, lay down, maintain or use moorings on that land and any question whether the grant of a licence has been or has not been unreasonably refused shall be determined by the Secretary of State.
(3) Any person who, without reasonable excuse, shall place, lay down, maintain, renew or use a mooring, buoy or similar apparatus for vessels within a harbour area except under and in accordance with the terms and conditions of a licence granted under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) Any licence granted under subsection (2) above shall be valid for a period of not more than 3 years commencing with the date on which it takes effect.
(5) The Council may charge a reasonable fee for the grant of a licence under this section.
(6) Nothing in this section shall apply to the harbour area at Portree.
The Council may construct, purchase, contract for or hire, and may maintain and use, vessels required by them for carrying out their functions under this Order, including dredging, and may sell or dispose of any such vessels belonging to them.
The Council shall, if required by the Commissioners of Customs and Excise so to do, provide at a harbour area such accommodation for the use of officers of the customs and excise service as may be reasonably required by the said commissioners.
(1) If in respect of any financial year the moneys received by the Council on account of the revenue of the undertaking exceed the moneys expended or applied by them in respect thereof, the Council may in respect of that year carry to the credit of a reserve fund in respect of the undertaking such a sum as they consider reasonable not exceeding the amount of such excess.
(2) Moneys for the time being standing to the credit of the reserve fund may be invested in any securities in which trustees are for the time being authorised to invest trust moneys including debenture stock or other security created by the Council.
(3) Any reserve fund provided under this section may be applied—
(a) in making good to the regional rate fund any deficiency at any time arising in the income of the Council from the undertaking;
(b) in meeting any extraordinary claim or demand at any time arising against the Council in respect of the undertaking;
(c) in defraying any expenditure in connection with the undertaking for which capital is properly applicable or in providing money for repayment of loans;
(d) in defraying expenditure to be incurred from time to time in repairing, maintaining, replacing and renewing buildings, works, plant, vessels, equipment or articles forming part of the undertaking; or
(e) for any other purpose which in the opinion of the Council is desirable in the interests of securing the improvement, maintenance or management of a harbour area in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea to or from a harbour area.
(1) No person other than the Council shall in a harbour area—
(a) alter, renew or maintain any works; or
(b) dredge;
unless he is licensed so to do, in the case of works by a works licence and in the case of dredging licence, nor except upon the terms and conditions, if any, upon which the licence is granted and in accordance with plans, sections and particulars approved in pursuance of section 16 or, as the case may require, section 17 below.
(2) Any person who contravenes this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) The Council may by notice require a person who contravenes this section to remove, abate or rectify, within a reasonable time specified in the notice, any work, operation or omission to which the contravention relates, and to restore the site thereof to its former condition; and if he fails to comply with the notice the Council may carry out the works so required and may recover the cost of so doing from that person.
(4) Nothing in this section shall affect the powers of a public telecommunications operator under the [1984 c. 12.] Telecommunications Act 1984.
(1) The Council may upon such terms and conditions as they think fit grant to any person a licence to maintain, alter or renew works within a harbour area on, under or over tidal waters or tidal land below the level of high water, notwithstanding any interference with public rights of navigation or other public rights by such works as maintained, altered or renewed.
(2) Application for a works licence shall be made in writing to the Council and shall—
(a) be accompanied by plans, sections and particulars of the works to which the application relates;
(b) specify whether the applicant holds such rights in, under or over land as are necessary to enable him to enjoy the benefits of the licence and, if not, the action taken or to be taken to enable him to obtain such rights if the licence is granted; and
(c) be accompanied by a copy of a notice published in a newspaper circulating in the Highland Region stating that it is intended to make the application, containing a general description of the nature of the works for which application is being made and of the land affected thereby, specifying a place where a copy of the plans, sections and particulars of the proposed works may be inspected at all reasonable hours and stating that any person who desires to object to the Council to the grant of the application should do so in writing stating the grounds of his objection before the expiration of the period of 28 days from the date of the publication.
(3) In deciding whether or not to grant a works licence or as to the terms and conditions to be included in the licence the Council shall take into consideration any objection made to them in accordance with subsection (2)(c) above (hereinafter in this section and in section 18 below referred to as a competent objection) and in granting a licence the Council may require modifications in the plans, sections and particulars submitted to them by the applicant.
(4) If the Council decide to grant a works licence they shall give notice of their decision to the applicant and to any person who has made a competent objection and has not withdrawn it.
(5) If within 3 months from the date of the making of an application under subsection (2) above the Council do not notify to the applicant their decision whether to grant a works licence, they shall be deemed to have refused the application.
(6) The Council may charge a reasonable fee for the grant of a licence under this section.
(7) The grant of a licence under this section has effect for the purposes of section 15 above and confers no other authority for the carrying out of the operations covered by the licence.
(8) In the execution of any works to which a works licence relates, the licensee shall not damage or injuriously affect any electrical plant or electric line (as respectively defined in section 64 of the [1989 c. 29.] Electricity Act 1989) belonging to, or used or maintained by, Scottish Hydro-Electric plc or, without the consent of that company, interfere with or adversely affect the operation of any such line or work.
Highland Regional Council (Harbours) Order Confirmation Act 1991 (C. Xii)