The Tobermory Harbour Empowerment Order 2017

Document Number:2017 No. 196
Coming into force:Coming into force on the 10/06/2017
 
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Scottish Statutory Instruments

Harbours, Docks, Piers And Ferries

Made

9 th June 2017

Coming into force

10 th June 2017

The Scottish Ministers (the “Ministers”) make the following Order in exercise of the powers conferred by section 16(1) and (6) of the Harbours Act 1964(1) and all other powers enabling Ministers to do so.

In accordance with section 16(1) of that Act, Tobermory Harbour Association (“the Company”) has made a written application to Ministers for the making by Ministers of this harbour empowerment order.

In accordance with section 16(5) of that Act, Ministers are satisfied that the making of this harbour empowerment order is desirable in the interests of facilitating the efficient and economic transport of goods or passengers by sea and in the interests of the recreational use of sea-going ships.

Notices have been published by the applicant in accordance with the requirements of paragraph 10 of Schedule 3 of that Act.

In accordance with paragraph 19(1) of that Schedule, Ministers have considered—

(a) the result of the consultations under paragraph 15 of that Schedule;

(b) any objections made and not withdrawn; and

(c) any representations made under paragraph 10(2)(f) of that Schedule.

In accordance with paragraph 19(2) of that Schedule, Ministers have decided to make this Order with modifications which do not appear to the Ministers to substantially affect the character of the Order.

PART 1

Citation and commencement

  1.   This Order may be cited as the Tobermory Harbour Empowerment Order 2017 and comes into force on the day after the day on which it is made.

    Interpretation

  2.   In this Order:

    “1847 Act” means the Harbours, Docks, and Piers Clauses Act 1847(2);

    “1964 Act” means the Harbours Act 1964(3);

    “1995 Act” means the Merchant Shipping Act 1995(4);

    “CMAL” means Caledonian Maritime Assets Limited, a company incorporated in Scotland with registered number SC001854 and having its registered office at Municipal Buildings, Fore Street, Port Glasgow, Renfrewshire, PA14 5 EQ and, subject to article 39(4) , includes any successor in title of Caledonian Maritime Assets Limited to the ferry pier and slipway;

    “the Company” means Tobermory Harbour Association, a company incorporated in Scotland with registered number SC256859 and having its registered office at Taigh Solais, Ledaig, Tobermory, Isle of Mull, Argyll, PA75 6 NR;

    “existing moorings” means moorings existing within the harbour at the date this Order comes into force;

    “existing works” means the piers, pontoons and slipways existing as at the date of this Order within the harbour limits and shown for identification purposes on harbour map;

    “ferry operator” means the operator (if any) , from time to time, of the Clyde and Hebrides Ferry Services on behalf of the Scottish Ministers;

    “ferry pier and slipway” means the Mishnish Pier and slipway (or any part thereof) situated within the harbour limits and shown for location purposes shaded blue on the harbour map between points 2 and 3 and includes the fixed mooring owned by CMAL located at 56° 37.241’N 006° 3.664’W;

    “general direction” means a direction given by the Company under article 16 (general directions to vessels);

    “government department” includes any part of, or any member of the staff of, the Scottish Administration which shall have the same meaning as in section 126(6) of the Scotland Act 1998;

    “harbour” means the area within the harbour limits including the harbour premises;

    “harbour limits” means the limits of the harbour as defined in article 8 (limits of harbour) of this Order;

    “harbour map” means the map referred to in, inter alia, article 8 (limits of harbour) of this Order, two copies of which have been signed, dated and deposited at the offices of the Scottish Ministers at Victoria Quay, Edinburgh EH6 6 QQ and one copy of which has been signed, dated and deposited at the registered office of the Company;

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

    “harbour premises” means the quays, berths, piers, pontoons, moorings, landing places, and all other works, land, buildings and other structures and premises from time to time vested in or occupied or administered by the Company as part of the harbour undertaking, including the existing works which are all situated within the harbour limits;

    “harbour undertaking” means the harbour related business activities of the Company;

    “land” includes land covered by water, any interest in land and any servitude or right in, to or over land;

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

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

    “mooring” includes any buoy, pile, post, chain, pillar, jetty for use as an appurtenance to a dwelling or like apparatus or structure used for the mooring of vessels;

    “relevant ferry services” means any services associated with the delivery of the Clyde Hebrides Ferry Services on behalf of the Scottish Ministers;

    “special direction” means a direction given by the harbour master under article 18 (special directions to vessels); and

    “vessel” means a ship, boat, or craft of any description and includes any other thing constructed or adapted for floating, or hovering, on or being submersed in water (whether permanently or temporarily).

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

  3. —(1) Sections 1 to 4 , 33 to 35 , 37 to 39 , 42 to 46 , 51 , 54 , 55 , 58 , 63 to 65 and 74 of the 1847 Act are incorporated with this Order subject to the modifications stated in paragraphs (2) to (4).

    (2) In construing the provisions of the 1847 Act as incorporated with this Order—

    (a) the expression “the special Act” means this Order, the expression “the undertakers” means the Company and the expression “the harbour, dock, or pier” shall mean the harbour; and

    (b) for the definition of the word “vessel” in section 3 (interpretations in this and the special Act) there shall be substituted the definition of that word in paragraph (1) of article 2 (interpretation);

    (c) section 63 shall be read and have effect as if for the words from “be liable to” to the end of the section there were 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”

    (d) section 65 (harbour master may remove vessel for purpose of repairing harbour or dock if the master neglects or refuses to do so) shall have effect subject to the omission of the words from “Provided always” to the end of the section.

    PART 2 EXISTING WORKS PROVISIONS

    Power to maintain, etc. the existing works

  4.   The Company may maintain, use and operate the existing works and may, within the harbour limits, reconstruct, extend, enlarge, replace, re-lay or otherwise alter the existing works, and may maintain, use and operate the existing works as reconstructed, extended, enlarged, replaced, re-laid or otherwise altered.

    Power to dredge

  5. —(1) The Company may, for the purposes of maintaining the works and of affording access to the harbour by vessels from time to time deepen, dredge, scour, cleanse, alter and improve so much of the bed, shores and channels as lie within the harbour limits and within the approaches and the channels leading to those limits and may use, appropriate or dispose of the materials (other than wreck within the meaning of Part IX of the 1995 Act(interpretation)) , from time to time dredged by it.

    (2) The Company shall not lay down or deposit such materials in any place below the level of high water otherwise than in such position and under such conditions and restrictions as may be approved or prescribed by the Scottish Ministers.

    Existing works to be deemed part of undertaking

  6.   The existing works shall be deemed for all purposes to be part of the harbour undertaking and all byelaws, directions, rules and regulations of the Company for the time being in force relating to the harbour shall apply to the existing works and may be enforced by the Company accordingly.

    Operational land and land within area of Argyll and Bute Council

  7.   The land situated within the harbour limits shown shaded blue, yellow and orange on the harbour map shall—

    (a) be deemed to be operational land within the meaning and for the purposes of the Town and Country Planning (Scotland) Act 1997(5); and

    (b) to the extent, if any, that it lies outwith the area of Argyll & Bute Council, be deemed to be part of that area.

    PART 3 HARBOUR REGULATION

    Limits of harbour

  8. —(1) The limits of the harbour within which the Company shall exercise jurisdiction as the harbour authority within the meaning of section 57 of the 1964 Act and within which the powers of the harbour master shall be exercisable, shall extend over the area the boundaries of which are described in the Schedule to this Order and shown on the harbour map.

    (2) The area described in the Schedule to this Order is shown on the harbour map and, in the event that there is any discrepancy between the description of that area and the area shown on the harbour map, the description shall prevail.

    Moorings

  9. —(1) The Company may provide, place, lay down, maintain, renew, use, have or remove such moorings within the harbour as it considers necessary or desirable for the convenience of vessels.

    (2) The Company may demand, receive and recover in respect of any vessel using any of the moorings provided by the Company under paragraph (1) , or moored to land owned or leased by the Company, such reasonable charges as the Company may from time to time prescribe.

    (3) The Company may compound with any person with respect to the payment of the charges prescribed under paragraph (2).

    (4) The Company may from time to time grant a...

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