Harbour orders

A Harbour Empowerment or Revision Order is a piece of local legislation governing a port. It is made as a Scottish Statutory Instrument under the 1964 Harbours Act by Scottish Ministers.

An order can create and empower Harbour Authorities to undertake works projects or vary their existing harbour powers.  Where a project is proposed to be authorised a screening process must be undertaken. Ministers may also defer the Environmental Impact Assessment and both screening decisions and deferral directions must be published.

We publish Ministers' decisions on applications.

Ministers may also make Harbour Closure Orders to remove statutory powers from a Harbour Authority and orders to remove Pilotage Functions from Competent Harbour Authorities.

• Guidance on the circumstances in which these orders can be made and the process for applications

This guide provides details of the process and how to apply.

Revised 2016

Purpose

This guide is intended to provide advice to prospective applicants and other interested parties on the process for obtaining a harbour order in respect of a harbour in Scotland, under section 14 or 16 of the Harbours Act 1964 (“the 1964 Act”). It contains informal guidance and any prospective applicant should obtain their own legal advice before making an application.

Legal Framework

Types of order

The 1964 Act gives powers to Scottish Ministers to make various types of harbour order, for the purposes of introducing new harbour legislation or amending existing harbour legislation of local application to a specific harbour or group of harbours.

Section 14 harbour revision orders (HROs)

Orders under section 14 can be applied for by the harbour authority concerned in improving, maintaining or managing a harbour in the exercise and performance of statutory powers and duties, or by a person, or a body representing persons, having a substantial interest in the harbour. The order must be in the interests of the harbour and may be made for achieving all or any of the objects specified in Schedule 2 of the 1964 Act. An HRO can extend or modify existing statutory powers and/or authorise works.

Sections 15 harbour revision orders (HROs)

Orders under section 15 are made by Scottish Ministers without application by a harbour authority and are limited to the reconstitution of a harbour authority and the regulation of its procedure.

Section 16 harbour empowerment orders (HEOs)

Orders under section 16 may be applied for by any person whose objectives are the improvement, maintenance or management of a harbour, or the construction of a new harbour for which they are seeking statutory powers where such powers do not already exist.

We are happy to meet with applicants prior to formal application to discuss procedure and drafting. We strongly advise applicants to consult as widely as possible locally, particularly if the proposal contains works which may impact on local environments. The consultee list below is not exhaustive and is provided for guidance only.

• NatureScot (formerly Scottish Natural Heritage)
• Scottish Environment Protection Agency (SEPA)
• Maritime and Coastguard Agency
• Northern Lighthouse Board
• Marine Scotland (Marine Licensing team)
• Transport Scotland (where there are road/rail impacts)
• Crown Estate Scotland
• Local Planning Authority
• Local communities and neighbour

Assessment of environmental impact (EIA)

Where a harbour order will empower any project categorised under the Environmental Impact Assessment Directive (85/337/EEC) on the assessment of the effects of certain projects on the environment, Scottish Ministers will inform the applicant of the requirements to provide an Environmental Statement (ES). An ES examines the impact of the proposals on the environment as outlined in the procedure in Schedule 3 of the 1964 Act.

The Directive categorises works projects under annex I and annex II. Annex I lists projects for which an environmental impact assessment (EIA) is mandatory. Annex II lists projects which will require an EIA only if their effects on the environment are likely to be significant.

The information required for an ES (as identified at paragraph 8 of Schedule 3 to the 1964 Act) can take a considerable time to collect and analyse and applicants are advised to consult with NatureScot, SEPA  and other environmental bodies at an early stage and to seek a screening opinion as appropriate from Scottish Ministers early in the development of their proposals to minimise abortive work.

If it is determined that an EIA is required, a scoping opinion, which will guide the applicant on the issues the environmental statement should address, will also be provided. In considering whether an EIA is required we will consult with NatureScot, SEPA, Local Planning Authority and any other bodies considered appropriate.

An incomplete ES which does not provide the information required in the scoping opinion will delay the process and may be subject to additional consultation when completed/amended.

Scottish Ministers will also consider whether an Appropriate Assessment (AA) may be required under the Conservation (Natural Habitats &etc) Regulations 1994 which implement the requirements of the Habitats Directive (92/43/EEC) under which European sites are established based on their importance as natural habitats.

These regulations require that any project be considered for its effect on a European site. If the effect is likely to be significant then an appropriate assessment of the implications for the site must be undertaken by Scottish Ministers. This assessment is to establish if the project, after inclusion of mitigation measures, is likely to adversely affect the integrity of the site. Information to inform an AA may be required even if an ES is not.

If such an adverse effect is found to be likely, the project can only be approved if there are no alternative solutions, if there are imperative reasons of overriding public interest for carrying out the project, and provided any necessary compensatory measures are secured preserving the overall coherence of European sites.

We are willing to comment informally on draft orders but applicants should be mindful that such consideration is resource intensive and we will not be able to enter into protracted discussion on multiple drafts.   Drafts should  be accompanied by purpose and effect notes which detail the reason for seeking each power and the legal basis for such a power to be granted with reference to schedule 2 of the 1964 Act.  This will assist us in understanding the applicant’s purpose and requirements.

The fact that any provision is contained in another made order is not sufficient justification for inclusion and the need for each provision should be specific to the individual harbour size, uses and needs.  A purpose and effect note template will be provided if requested.

Applicants should seek their own legal advice prior to submitting a draft as we cannot provide such advice.  

All application drafts should be accompanied by purpose and effect notes if not already provided during informal discussions and the appropriate fee.  Applicants should also be mindful of devolved and reserved matters and should not include any provision in their drafts which relates to reserved matters which are out with the powers of Scottish Ministers to include in Harbour Orders.

An electronic copy of the draft order and any associated document  is normally sufficient  but if plans/maps are larger than A3 then we need 3 hard copies. E-copies of draft orders should be in word format.  Where an ES is required to accompany the application, we request one hard copy and one electronic copy on cd-rom or memory stick. Where possible applicants should consider making their ES available on line to allow interested parties to view it during the consultation period. A checklist of everything required with an application is at Annex A.

Where a new harbour authority is being proposed or transfer of existing infrastructure to a new authority, the application should also cover details of the condition of any infrastructure and maintenance plans, including how these will be resourced.

Fees

Fees for harbour orders are fixed based on the powers required in the order and are payable when a formal written application for an order is made.

Current fees are:

• £2,000 for an order the sole purpose of which is to amend the borrowing powers of an existing authority
• £4,000 for any other order that would not empower an authority to undertake works
• £6,000 for an order which expressly empowers an authority to undertake works where an EIA is not required
• £10,000 for an order which expressly empowers an authority to undertake works where it is decided that an EIA is required

The applicant must publish notice of the application once in the Edinburgh Gazette and once in each of two successive weeks in one or more local papers. The notice must comply with the requirements of schedule 3 of the 1964 Act and should give:

• notice that application has been made
• Scottish Ministers decision on the application of the EIA directive (if appropriate) and whether an ES  has been supplied and, if so, where it and the draft order and any related maps etc can be viewed
• a concise summary of the draft order
• a general description of any works and any land proposed for compulsory acquisition if appropriate
• information on how objections should be made within 42 days of the date the order was first advertised and details of the procedure for handling these

In addition, the template notice at Annex C covers  suitable text to advise any objectors or people making representations how their responses will be handled for Data Protection purposes.

 Where the notice also covers a Marine Licence application for the project which is being considered at the same time as the HRO application a single notice may cover both so please contact us prior to publication for additional requirements for the notice.

If the order would authorise the compulsory acquisition of land or the extinguishment or diversion of a footpath or bridleway, there are additional requirements for giving notice.

Original copies of each publication containing the notice must be provided to us.

Scottish Ministers may direct that copies of the draft order are served on persons specified by them.  This would normally be done during the pre-application discussion but may be done on receipt of the application.  In all cases where an ES is required we would normally require service on the following bodies:

• NatureScot
• SEPA
• Local Planning Authority
• Northern Lighthouse Board
• Maritime and Coastguard Agency
• UK Chamber of Shipping
• Royal Yachting Association

If the applicant is not the harbour authority they must also serve a copy on that authority. Proof of service or a copy email where issued electronically will be required.

Where no works are to be authorised by the order the bodies to be served would normally exclude NatureScot and SEPA but in each case the applicant will be formally advised on the persons to be served.

The 1964 Act allows 42 days from the date the advertisement first appears for objections and representations to be made. During this time, we will be conducting our own consultations normally with those persons served with notice of the application above and each consultee will also have 42 days in which to respond. This may run concurrently with the public consultation period.

All objectors must state the grounds for their objections. Objections will be passed to the applicant who will have the opportunity to negotiate with the objector (for example, where the objections can be addressed through provision of additional information or mitigation measures). There is no fixed timescale for this stage in the process and this will very much depend on the nature and scale of any objections received. We would normally agree a timeframe to review the status of the objections with the applicant at the end of the 42 day period. It is for the applicant to decide the appropriate length of time this may take and this can be extended at any point should this be seen to be necessary/helpful to all parties.

Objections can be withdrawn at any time in the process by writing to Scottish Ministers. At the end of the agreed timeframe, we will contact any outstanding objectors to ask them to confirm the status of their objection before proceeding.

Where objections are not withdrawn

Ministers will take a decision on the most appropriate route to deal with the objections, which are not withdrawn, in the best interests of the applicant and those making representations.

Scottish Ministers may determine that they can be handled by further written representations from both parties.  Although there are no specified procedures in the 1964 Act for this we will generally adopt the timetable used in connection with objections under the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure)Rules 2007, which allows time for each party to respond. This process is detailed in Annex D.

In more complex cases where objections are not withdrawn Ministers may determine that a hearing or public inquiry is to be held. Although there are no rules in the 1964 Act governing inquiry procedures, they are run on similar lines to planning inquiries.

At the end of a PLI, Hearing or Written Representations process the Minister will consider the material provided in reaching his decision on the making of the Order. NOTE: there may still be the requirement for Ministers to undertake an Appropriate Assessment and they would consult with NatureScot for advice on this at this stage. This is separate from the objections process although it may in some cases rely on material produced as part of those proceedings.

Scottish Ministers will consider whether any modifications are necessary to the order e.g. to pick up drafting errors, to meet objections or to provide mitigating measures.

Where Scottish Ministers propose to make an order with modifications that we believe substantially affect the character of the order, we shall take steps to inform the applicant and other people likely to be concerned and will allow a reasonable period for comment on the modifications before making the order.

We cannot accept a modification to an order which would authorise the compulsory acquisition of land not described in the original application, unless all parties consent.

Discontinuing an application

The applicant may at any time ask for the application process to be discontinued.

We are required not to consider an application unless the applicant has complied with the appropriate procedural requirements (Paragraph 9, Schedule 3 of the 1964 Act).

Where there are outstanding objections, it may also be decided that, rather than causing an inquiry to be heard, the application shall not proceed further (Paragraph 18(1A), Schedule 3 of the 1964 Act).

In making the decision on whether or not to make the order or to make it with modifications, Ministers will consider:

• any environmental statement provided
• the results of any consultation
• any objections made and not withdrawn
• any representations made
• the report of any enquiry or hearing
• any written representations by the applicant or objectors

Following consideration a formal decision letter will be issued to the applicant, copied to consultees and objectors, and published on our website.

Order made

An order will usually be made within a short period of the decision letter being issued, depending on the complexity of the order and any modifications to it. The applicant must publish notice of the fact that the order has been made in the Edinburgh Gazette and a local paper and serve copies on the same people notified of the original application.

Applicants must copy the adverts and notices to us.

Where an EIA was required Scottish Ministers are also required to publicise the making of an order by gazette and local notice.

Timescales

The timescales for the various stages outlined above will vary in line with a number of factors, in particular the complexity of the proposal, the degree of public interest, and the nature and numbers of objections.

The only statutory period is the 42 days allowed for receipt of public comments and responses from consultees following formal application.

As a guide only, applicants can expect a screening and scoping opinion in respect of an environmental statement to be given within 10 weeks of request.

A flowchart summarising the process is at Annex B

Consideration by the Scottish Parliament

The majority of harbour orders are made by Scottish Ministers without reference to the Scottish Parliament but any order which authorises a project considered to be of national significance will be subject to parliamentary scrutiny.  National developments are those designated as such under the Town and Country Planning (Scotland) Act 1997 ie those included in the National Planning Framework.

Such orders will be laid in draft before the Parliament and will be scrutinised by the relevant committees who will report to parliament on whether or not they should be approved.  Any order subject to this procedure cannot be made until approved by resolution of the Parliament.

It is the responsibility of the applicant to ensure that they have all of the necessary consents in place prior to undertaking any works proposed.

However, Transport Scotland is happy to consider aligning the application for the harbour order along with any other consent that may be required. This may include an application for a Marine Licence from Marine Scotland or for Planning Permission from the relevant local authority (where the works fall outwith those that would otherwise be authorised by section 29 or 35 of the General Permitted Development Order).

Where the proposal will require other consents such as planning permission and marine licence we will work with the other consenting bodies and where practical agree a joint approach to environmental assessment and issue a single scoping and screening response for a single Environmental Statement to cover all aspects of a project.

We would encourage applicants to consider this joint  approach which could be of benefit to them in avoiding duplication of information to be provided.

Related matters

Harbours in Scotland are obliged under section 42 of the Harbours Act to provide Scottish Ministers with copies of their annual accounts and reports and we would encourage all harbours to publish these on their websites.  In the case of trust ports we would also encourage the publication of details of the board membership and their terms of office which demonstrates the openness and transparency of appointments required in our guidance on trust port governance.

Contact information

For all queries relating to harbour orders or to set up a meeting to discuss a new application please contact:

Ports and Harbours Branch on 0131 244 7878 or 0131 244 1566 or email us at harbourorders@transport.gov.scot

Annex A

Application Checklist

An electronic copy of all application documents – draft order in word format

3 hard copies of any maps or plans if larger than A3,

One hard copy of Environmental Statement (ES) and any supporting documents if screened as required

Electronic copy of ES and supporting documents (on CD or memory stick)

Purpose and effect notes covering all provisions in the draft order justifying  why each power is being sought and the purpose each is expected to achieve

Condition surveys and or maintenance plans and costings if new authority or transfer order

Application letter confirming:-

legal name of applicant (and their substantial interest if not the current authority for an existing harbour)

relevant section of the Harbours Act under which the order is sought

the objects for which it is sought (HROs only - schedule 2 of the Act)

general purpose of the order applied for

confirmation of date first notice will appear in the press

Relevant fee (cheques payable to Transport Scotland).

Annex B

Harbour Orders Process Chart

Annex C

Public notices must meet the requirements of paragraph 10 of schedule 3 to the Harbours Act 1964, as well as the requirements of Transport Scotland as to the treatment of the personal data of any objectors. The following template may be helpful to applicants and their agents in meeting these requirements. Where multiple consents are required and the notice is intended to cover a Marine Licence application in addition to the HRO please contact us for additional requirements before arranging publication.

HARBOURS ACT 1964 (AS AMENDED)

THE ……………. HARBOUR [EMPOWERMENT/REVISION] ORDER

1. NOTICE IS HEREBY GIVEN THAT […………………………..] (“the Applicant”) has applied to the Scottish Ministers for a Harbour [Empowerment] [Revision] Order under section [16] [14] of the Harbours Act 1964 (“the 1964 Act”).

2. The Order will […… summary of the purpose of the order including any works, to be inserted]

3. The Scottish Ministers have advised by letter dated [………].that they have decided in accordance with paragraph 4 of Schedule 3 to the 1964 Act that the application [relates] [does not relate] to a project which falls within Annex [I] [II] to Council Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“the Directive”) [being] [not being] a construction of a port installation. [The Scottish Ministers have concluded that it [is][is not] a relevant project in terms of Schedule 3 to the 1964 Act because it would be [likely] [unlikely] to have significant effects on the environment by virtue of [….. ]]. Accordingly, [no] [an] environmental statement [is required] [has been supplied].

4. A copy of the draft Order,[ the deposited plans, sections and elevations of the proposed works which accompanied the application, the environmental statement] and the letter dated […………….] may be inspected, free of charge, between the hours of [……………..], at [………………….] and between the hours of [………….] at the offices of the under mentioned Agent until the expiry of the forty-two day period specified below. [Any person requiring further information concerning the proposed works should apply in writing for that information to either one of those offices quoting reference……].

[5. Paragraph 16 of Schedule 3 to the 1964 Act (which requires information to be supplied concerning a project which is likely to have significant effects on the environment in Great Britain and in another European Economic Area State) [does] [does not] apply to the application]

6. Any person wishing to make an objection or representation on the environmental statement to the Scottish Ministers concerning the application should write to [specify official], Ports and Harbours Branch, Transport Scotland, Area 2F North, Victoria Quay, Edinburgh EH6 6QQ or email harbourorders@transport.gov.scot  within forty-two days from the date at the foot of this notice quoting [name of order] stating the grounds of their objection or representation and giving an address to which correspondence relating to the objection or representation may be sent.

7. All objections or representations made, including personal information provided to Scottish Ministers, will be shared with the applicant who may contact you to discuss your concerns. Names and the text of any representation may also be published on Transport Scotland’s website due to Freedom of Information requirements. If you wish to discuss any issues relating to the use of your personal data please contact the person specified in paragraph [….] of this notice.

8. If an objection is duly made to the application and not withdrawn the Scottish Ministers may, before making their decision (i) cause an inquiry to be held, or (ii) give to the objector an opportunity of appearing before and being heard by a person appointed by them.

Agents details to be inserted

Date (NB this date should be the date of publication of the first notice)

Annex D

Written Representation Procedures               

As outlined Ministers generally use this process where only a few topics of objections have been raised and there is no formal requirement for a PLI under the terms of the Harbours Act 1964 (e.g. where compulsory purchase is involved).

As there is no set procedure in the Harbours Act for written representations, we follow the process relating to objection handling under the Transport and Works Scotland Act 2007.

Under this process, both the applicant and the objector will be formally notified of the decision to handle the process by means of written representations using the following steps:

1. Initially the applicant is offered the opportunity to consider whether there is any further information they may wish to provide in support of the order. This may relate to one or all of the objections. The applicant has up to 28 days from the formal notification to consider whether to provide any additional information which will then passed to the objectors (usually within seven days of receipt by Transport Scotland) - the applicant can of course submit the information at any point in the 28 day period.

2. The objector then has to respond within 21 days should they have anything further to add. If they do not respond within the timeframe we would proceed to determination on the objections.

3. Any response would be passed to the applicant and they would have a further 14 days to add anything further.

4. Any material produced at step 3  would be passed back to the objector for further comments in line with step 2 (and back to the applicant in line with step 3).

5.  We would proceed to determination unless any issues raised would warrant further consideration or additional information was required to inform the determination (provided other issues with the draft are resolved and subject to any Appropriate Assessment requirements).

We would stress that the above process would only be used to consider the issues raised during the 42 day consultation period (that were not subsequently withdrawn) and that additional matters raised would not be considered in the decision making process.