Harbours (Amendment) Act 2009

1. Definition.

1.— In this Act “ Principal Act ” means Harbours Act 1996.

2. Amendment of section 2 (interpretation) of Principal Act.

2.— Section 2 of the Principal Act is amended by substituting the following for the definition of “ the Minister ”:

“ ‘ Minister ’ means Minister for Transport;”.

3. Limits of a company's harbour, etc.

3.— (1) The Principal Act is amended—

(a) by substituting the following for section 9:

“Limits of a company’s harbour.

9.— (1) (a) Except and in so far as an order is in force under this section in respect of a company, the limits of a company’s harbour shall be those set out in Part I of the Third Schedule.

(b) A reference in this Act, or in an order under this section, to a company's harbour shall be construed as including a reference to any point within the limits of its harbour as aforesaid or, where the company has more than one harbour, of each of its harbours.

(2) (a) (i) Subject to the other provisions of this section, the Minister may, after consultation with the company concerned, by order provide for the limits of a harbour of a company in lieu of the limits as set out in Part I of the Third Schedule and, for so long as such an order is in force, that Part, in so far as it relates to the limits of that harbour, does not have effect.

(ii) The reference in subparagraph (i) to an order in force shall, as respects such an order that is amended by an order in force under section 3(4), be construed as a reference to the first-mentioned order as so amended.

(b) An order under this section may be made in respect of a company for any additional area, whether or not—

(i) contiguous to the existing harbour limits of the company concerned, or

(ii) for the purpose of relocating, in whole or in part, a harbour of a company.

(c) Where an area not contiguous to an existing harbour (as provided for by Part I of the Third Schedule or a previous order or orders under this section) is provided for by order under this subsection, then that area shall be in addition to and not in lieu of the area provided for—

(i) in the Third Schedule, or

(ii) otherwise by an order under this subsection,

unless the contrary intention is otherwise provided for by the order concerned.

(3) In deciding whether or not to make an order under this section the Minister shall have regard to—

(a) the present capacity of the harbour and expected capacity needed having regard to the nature of shipping using or estimated will be using the harbour,

(b) navigational safety, and

(c) such and so many of the following as are, in the opinion of the Minister, relevant to his or her decision:

(i) leases made under section 2, licences granted under section 3, approvals under section 10 or consents given under section 13 of the Foreshore Act 1933 and any application duly made for such a lease, licence, approval or consent,

(ii) applications for permission, or permissions granted, under thePlanning and Development Acts 2000 to 2009 in respect of the development of any land,

(iii) environmental impact assess-ments made under the Planning and Development Acts 2000 to 2009,

(iv) any development plan made by a planning authority pursuant to sections 9 and 12 of the Planning and Development Act 2000, and any local area plan under section 18 of that Act.”,

and

(b) in the Third Schedule—

(i) by substituting the following, with effect from 30 June 2004, for paragraph 3:

“Drogheda Port Company.

(ii) by substituting the following, with effect from 4 March 1997, for paragraph 4:

“Dublin Port Company.

(a) the River Liffey and the quays and walls bounding the same,

(b) the walls called the North Wall, the South Wall and the East Wall, respectively,

(c) the piers, jetties, tidal basins and other works constructed by or belonging to the Dublin Port and Docks Board before the relevant vesting day, and

(d) the harbour of Dublin and the strands, bays, creeks and harbours thereof and all waters inside that area,

commencing from and including the Rory O’More Bridge at Heuston Station in the City of Dublin, and extending to an imaginary straight line drawn from the Baily Lighthouse on the north in the County of Dublin and extending through the North Burford Bank Buoy and thence through the South Burford Bank Buoy and thence to Sorrento Point on the south, including the harbours of Bulloch and Sandycove, but excepting the limits of the harbour of Dún Laoghaire Harbour Company and excepting also the harbours of Coliemore and Sutton.”.

(2) The Harbours Act 1996 (Limits of Harbour of Dublin Port Company) (Alteration) Order 1997 (S.I. No. 98 of 1997) and the Harbours Act 1996 (Limits of Harbour of Drogheda Port Company) (Alteration) Order 2004 (S.I. No. 238 of 2004) are revoked.

4. Amendment of section 11 (objects of a company) of Principal Act.

4.— (1) Section 11 of the Principal Act is amended by deletion of subsection (4)(d).

(2) Nothing in section 12A (inserted by section 5) of the Principal Act affects a contract duly entered into under section 11(4)(d) of that Act before the passing of this Act.

5. Commercial activities outside harbour limits by a company.

5.— The Principal Act is amended by inserting the following after section 12:

“12A.— (1) Subject to subsection (2), where it appears to a company to be requisite, advantageous or incidental to the performance by it of its other functions under this Act in respect of its harbour, the company may invest in or engage in commercial activities outside the limits of its harbour.

(2) A company shall not engage in a commercial activity to which subsection (1) relates unless it has received the prior approval in writing for such activity from the Minister given with the consent of the Minister for Finance.”.

6. Amendment of section 15 (provisions with respect to sale, leasing and acquisition of land) of Principal Act.

6.— Section 15 of the Principal Act is amended—

(a) by substituting the following for subsection (2):

“(2) Subject to subsection (4)(a), the consideration for which any land is sold by a company shall, in so far as is practicable, not be less than its open market value.”,

and

(b) in subsection (4) by substituting the following for paragraph (a):

“(a) In making any decision as to—

(i) the acquisition of land or the consideration to be paid for such acquisition, or

(ii) the disposal of any land or the consideration to be accepted,

a company shall have regard to any Government policy or guidelines in relation to the acquisition of land or the disposal of land, as appropriate, by State enterprises which is or are for the time being extant.”.

7. Transfer of certain Ministerial functions to Bord Pleanála.

7.— (1) In this section “ Act of 2006 ” means the Planning and Development (Strategic Infrastructure) Act 2006.

(2) The Planning and Development Act 2000 is amended—

(a) in section 2(1) by substituting the following for paragraph (h) of the definition of “ strategic infrastructure develop ment ” (inserted by section 6 of the Act of 2006)—

“(h) any compulsory acquisition of land referred to in section 214, 215A, 215B or 215C, being an acquisition related to development specified in any of the preceding paragraphs of this definition;”,

(b) by inserting the following section after section 215B:

“Transfer of certain Ministerial functions under Harbours Act 1996.

215C.— (1) The functions of the Minister for Transport under section 16 of, and the Fourth Schedule to, the Harbours Act 1996, as amended, in relation to the compulsory acquisition of land for the purposes set out in that section are transferred to, and vested in, the Board and, subject to section 7(3) of the Harbours (Amendment) Act 2009, relevant references in that Act to the Minister for Transport shall be construed as references to the Board and any connected references shall be construed accordingly.

(2) The transfer of the functions of the Minister for Transport in relation to the compulsory acquisition of land in accordance with subsection (1) shall include the transfer of all necessary ancillary powers in relation to substrata of land, easements, rights over land (including wayleaves and public rights of way), rights over land or water or other such functions as may be necessary in order to ensure that the Board can fully carry out its functions in relation to the enactments referred to in subsection (1).”,

(c) in section 217C (inserted by section 38 of the Act of 2006) by substituting in subsection (1) “section 214, 215A, 215B or 215C” for “section 214, 215A or 215B”,

(d) in section 218 (inserted by section 39 of the Act of 2006)—

(i) by substituting in subsection (1) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B”, and

(ii) by substituting in subsection (4) “sections 214 to 215C” for “sections 214 to 215B”,

(e) in section 219 (inserted by section 40 of the Act of 2006)—

(i) by substituting “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B”, and

(ii) by substituting “section 215A, 215B or 215C” for “section 215A or 215B”,

(f) in section 221—

(i) by substituting in subsection (1) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (inserted by section 41 of the Act of 2006),

(ii) by substituting in subsection (2) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (as so inserted),

(iii) by substituting in subsection (5) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (as so inserted), and

(iv) by substituting in subsection (7) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (as so inserted),

and

(g) in section 223—

(i) by substituting in subsection (1) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (inserted by section 42 of the Act of 2006), and

(ii) by substituting in subsection (2) “section 214, 215, 215A, 215B or 215C” for “section 214, 215, 215A or 215B” (as so inserted).

(3) For each provision of the Fourth Schedule to the Principal Act specified in the first column of Schedule 1 there is substituted for the words set out in the second column of that Schedule opposite that provision the words set out in the third column of that Schedule opposite the words in the second column of that Schedule.

8. Amendment of section 17 (articles of association) of Principal Act.

8.— Section 17 of the Principal Act is amended—

(a) in subsection (1)—

(i) by deleting “or the local authority directors” in paragraph (b)(i), and

(ii) by deleting the definition of “local authority director” in paragraph (d),

and

(b) in subsection (3) by substituting the following for paragraph (a):

“(a) the number of directors of the company shall be not more than 8;”.

9. Amendment of section 23 (power to borrow) of Principal Act.

9.— Section 23 of the Principal Act is amended—

(a) in subsection (1) by substituting the following for paragraph (b):

“(b) The aggregate at any one time of borrowings under paragraph (a) by a company and a subsidiary or either of them shall, subject to subsection (2), not exceed the higher of—

(i) such amount as the Minister, with the consent of the Minister for Finance, approves with respect to a particular company or subsidiary not exceeding €200,000,000, or

(ii) 50 per cent of the value of so much of the company’s or subsidiary’s assets as are treated as fixed assets for the purposes of its accounts.”,

and

(b) by substituting the following for subsection (2):

“(2) In respect of a named company or a named subsidiary and for the purposes of paragraph (b) of subsection (1), the Minister may, with the consent of the Minister for Finance, by order provide for a percentage to apply, other than 50 per cent, having regard to—

(a) the needs of the company or subsidiary,

(b) the purpose of the borrowing and the ability of the company or subsidiary to make repayments, and

(c) the financial stability generally of the company or subsidiary.”.

10. Amendment of section 28 (annual reports, chairperson's report and furnishing of information to Minister) of Principal Act.

10.— Section 28 of the Principal Act is amended—

(a) in subsection (1), with effect from 6 months after the passing of this Act, by substituting “not later than 4 months after the end of each accounting year of the company” for “not later than 6 months after the end of each accounting year of the company”, and

(b) in subsection (4)—

(i) with effect from 6 months after the passing of this Act, by substituting “not later than 4 months after the end of each accounting year of the company” for “not later than 6 months after the end of each accounting year of the company”, and

(ii) by substituting “adhered to,” for “adhered to.” in paragraph (e) and by inserting the following after that paragraph:

“(f) a statement—

(i) of the average number of employees that are expected to be employed during the accounting year under contracts of service following that to which the accounts relate, or

(ii) that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service during the accounting year following that to which the accounts relate,

as determined in accordance with section 30(1)(a)(ii).”.

11. Amendments to Principal Act relating to directors, etc.

11.— (1) Section 30 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(1) (a) (i) An election shall only be held by a company under the Fifth Schedule where, in the opinion of the directors of the company, the average number of its employees is expected to exceed 30 in the accounting year of the company that immediately follows the accounting year in which the election is, subject to this subparagraph, due to be held.

(ii) For the purposes of this paragraph the average number of persons to be employed by a company in its accounting year following the election shall be estimated—

(I) by dividing the relevant annual number by the projected number of weeks in that year, where the relevant annual number is ascertained by estimating, for each week of the accounting year of the company following the election, the number of persons expected to be employed under contracts of service by the company in that week (whether throughout the week or not) and adding together all the weekly numbers, or

(II) by establishing that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service.

(iii) There shall be included in the accounts for each accounting year of a company—

(I) a statement of the average number of employees that are expected to be employed under contracts of service during the accounting year following that to which the accounts relate, or

(II) a statement that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service during the accounting year following that to which the accounts relate.

(b) Subject to paragraph (a), the Minister shall as respects a company appoint to be a director of the company the employee of the company who is elected in accordance with the Fifth Schedule.

(c) The Minister shall, as respects a company (other than a company to which paragraph (b) relates), appoint to be a director of the company a person who, in the opinion of the Minister, is representative of the interests of the employees of the company.

(d) Before making any appointment under paragraph (c) the Minister shall consult with any recognised trade union or staff association concerned which, following such consultation, may recommend to the Minister that a particular person be appointed under the said paragraph and the Minister shall consider such a recommendation.”,

(b) in subsection (3) by substituting “paragraph (b) of subsection (1)” for “paragraph (a) or (b) of subsection (1)”,

(c) by deleting subsection (6), and

(d) by inserting the following after subsection (7):

“(8) (a) In this subsection—

‘ commercial service ’ means a commercial service to a company (including any subsidiary) or to the port or ports of such company or to any person in connection with the use of the port or ports of the company;

‘ recommending person ’ means the person making a recommendation of a person for appointment under subsection (7) as a director of a company.

(b) Except where paragraph (c) applies, a recommending person shall not recommend a person to the Minister for appointment as a director of the company concerned if such person—

(i) had a charge imposed by that company under section 13,

(ii) was an employee of a person who had a charge so imposed,

(iii) had, in the opinion of the person making the recommendation, provided a significant commercial service, or

(iv) was an employee of a person who had provided such a service,

at any time during the 3 years immediately preceding the date of the recommendation.