Harbours Act 2015

PART 1 Preliminary and General

1. Short title and collective citation

1. (1) This Act may be cited as the Harbours Act 2015.

(2) The collective citation “the Harbours Acts 1996 to 2015” includes this Act, other than Part 6.

(3) The Merchant Shipping Acts 1894 to 2014 and section 51 may be cited together as the Merchant Shipping Acts 1894 to 2015.

(4) The collective citation “the Fishery Harbour Centres Acts 1968 to 2015” includes section 52.

2. Definitions

2. In this Act—

“Act of 1996” means Harbours Act 1996;

“chief executive” means a chief executive of a transferred company;

“company” means a company formed under section 7 of the Act of 1996;

“company transfer and dissolution day” shall be construed in accordance with section 28;

“company transfer day” shall be construed in accordance with section 8;

“dissolved company” means a company or companies specified in an order made under section 28;

“elected council” shall be construed in accordance with section 2 of the Local Government Act 2001;

“harbour” shall be construed in accordance with section 2 of the Act of 1996 (as amended by section 37);

“harbour master” shall be construed in accordance with section 37(1) of the Act of 1996;

“local authority” means a local authority within the meaning of section 2 of the Local Government Act 2001 (as amended by Part 1 of Schedule 1 to the Local Government Reform Act 2014);

“local authority chief executive”, in relation to a transferred company, means the chief executive (within the meaning of section 144 (inserted by section 54 of the Local Government Reform Act 2014) of the Local Government Act 2001) of the local authority in which shares in the company have been vested by an order made under section 8;

“Minister” means Minister for Transport, Tourism and Sport;

“subsidiary” has the meaning assigned to it by section 2 (as amended by section 37) of the Act of 1996;

“transferred company” means a company or companies specified in an order made under section 8.

3. Expenses

3. The expenses incurred by the Minister in the administration of the Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

4. Orders

4. Every order (other than an order made under section 8 or 28) made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order is annulled, but without prejudice to the validity of anything previously done under it.

5. Repeals and revocations

5. (1) The following are repealed:

(a) the Harbours Act 1946 ;

(b) the Harbours Act 1947.

(2) The Port Companies (Appointment of Local Authority Directors) Regulations 2002 (S.I. No. 34 of 2002) are revoked.

6. Temporary appointment of additional directors

6. (1) Notwithstanding section 30(1) of the Act of 1996 (as amended by section 39) and the memorandum and articles of association of a company, the Minister may, in respect of a company referred to in Schedule 1, appoint 2 additional directors to the board of a company for a period specified under subsection (4).

(2) In respect of an appointment under subsection (1), the Minister may consult with the chief executive of the local authority in which shares in a company are proposed to be vested under section 8 or to which a company’s harbour is proposed to be transferred under section 28 and the chief executive of that local authority may, following such consultation, recommend to the Minister that a particular person be appointed under subsection (1) and the Minister shall consider such a recommendation.

(3) Subsections (4), (5), (7), (9), (11) and (12) of section 30 (as amended by section 39) and section 34 (as amended by section 42) of the Act of 1996 apply to a person appointed under subsection (1).

(4) A director appointed under subsection (1) shall be appointed for a period specified by the Minister which period shall expire on—

(a) 31 July 2018, or

(b) such earlier date as the Minister may specify in the appointment.

(5) In this section “chief executive” means the chief executive within the meaning of section 144 (inserted by section 54 of the Local Government Reform Act 2014) of the Local Government Act 2001 of the local authority concerned.

7. Stamp duty not chargeable on transfer of shares or property under Act

7. The Stamp Duties Consolidation Act 1999 is amended by inserting after section 99B (inserted by section 28 of the Sport Ireland Act 2015) the following:

“Harbours Act 2015

99C. Stamp duty shall not be chargeable on any instrument under which ownership of—

(a) any shares stand vested in a local authority under section 8 of the Harbours Act 2015, or

(b) any land, easement, way-leave, water right or any other right over or in respect of land or water is transferred under sections 28, 32, 34 and 35 of the Harbours Act 2015.”.

PART 2 Transfer of Shareholding of Companies to Local Authorities

Chapter 1 Transfer of shareholdings to local authorities

8. Transfer of shareholding of company

8. (1) The Minister may, with the consent of the Minister for Public Expenditure and Reform and the Minister for the Environment, Community and Local Government, in respect of a company referred to in Schedule 1, by order provide that, without the need for any instrument of transfer or other form of assignment, ownership of all shares in the share capital of the company concerned—

(a) held by the Minister and the Minister for Public Expenditure and Reform, and

(b) held in trust for the Minister,

shall vest in a local authority specified in the order on such day as is specified in the order (in this Act referred to as a “company transfer day”).

(2) No consideration shall be payable by the local authority specified in an order made under this section in respect of the shares vested in that local authority under this section.

9. Future disposal or issue of shares

9. (1) (a) Subject to paragraphs (b) and (c), a local authority chief executive may, at such time or times as appear to him or her appropriate, sell, transfer, exchange, surrender or otherwise dispose of any shares vested in the local authority of which he or she is the chief executive by order made under section 8.

(b) The number of shares the subject of a sale, transfer or other disposal under paragraph (a) (or the aggregate number of shares the subject of sales, transfers or other disposals under that paragraph) shall not exceed 49 per cent of the issued share capital, at the time of the sale, transfer or other disposal, of the transferred company concerned.

(c) A local authority chief executive shall not dispose of any shares or acquire new shares in a transferred company without—

(i) the consent by resolution of the elected council concerned, and

(ii) the approval of the Minister, given after consultation with the Minister for the Environment, Community and Local Government and the Minister for Public Expenditure and Reform.

(2) Subject to subsection (1), a transferred company may in accordance with the Companies Act 2014—

(a) issue new shares, and

(b) divide and sub-divide shares into one or more than one class and attach thereto respectively any preferential, deferred, qualified or special rights or conditions.

(3) (a) Subject to subsection (1), the local authority chief executive concerned may enter into one or more than one agreement in connection with the sale or issue of shares in a transferred company or enter into one or more than one agreement in connection with both the sale and issue of shares in a transferred company, and any such agreement may include—

(i) representations, warranties and indemnities and provisions relating thereto,

(ii) provisions customarily contained in a shareholders’ agreement or an underwriting agreement, and

(iii) such other matters as the local authority chief executive may agree to.

(b) Without prejudice to the generality of the foregoing an agreement referred to in paragraph (a) may include provisions relating to—

(i) amendments to the memorandum of association or articles of association of the transferred company,

(ii) directors,

(iii) shareholders,

(iv) voting rights,

(v) dividend policy,

(vi) investments, and

(vii) restrictions on alienability of shares.

(4) Section 82 of the Companies Act 2014 shall not apply to—

(a) any representation made or warranty or indemnity given by a transferred company or any subsidiary of a transferred company in connection with the sale or transfer by the local authority chief executive concerned, or the issue by a transferred company of any shares in the transferred company, or

(b) any financial obligations undertaken by a transferred company or any subsidiary of a transferred company in connection with the sale or transfer by the local authority chief executive concerned of any shares in the transferred company or the issue by a transferred company of any shares in the transferred company,

for the purposes of an agreement entered into by that local authority chief executive under subsection (3).

10. General Ministerial powers of direction

10. (1) The Minister may, after consultation with the Minister for the Environment, Community and Local Government and the local authority chief executive concerned, give a direction in writing to a transferred company, requiring it to comply with—

(a) policy decisions of a general kind made by the Minister in relation to—

(i) the development of harbours,

(ii) navigational safety, and

(iii) security and operations generally in harbours,

and

(b) such policies of Government as may be specified in the direction.

(2) A transferred company shall comply with a direction given to it under this section.

(3)Subsection (1) shall not be construed as enabling the Minister to exercise any power or control in relation to the performance in particular circumstances by a transferred company of a function conferred on it by or under this Act, the Act of 1996 or any other Act.

Chapter 2 Matters relating to administration of transferred companies

11. Non-application of certain provisions of Act of 1996 to transferred company

11. Sections 10, 12A, 15, 17, 18, 22, 23, 27, 28, 29, 30, 32, 35, 36, 40, 41, 44 of, and the Fifth Schedule to, the Act of 1996 shall not apply to a transferred company on and from the company transfer day.

12. Consequential amendments to Act of 1996

12. The Act of 1996 is amended as provided for in Schedule 2.

13. Form of memorandum and articles of association of transferred company

13. (1) (a) The memorandum and articles of association of a transferred company on and from the company transfer day shall be in such form consistent with this Act and the Act of 1996 as may be approved by the local authority chief executive concerned.

(b) Subject to section 14, a transferred company shall, as soon as practicable after the company transfer day, make such amendments, if any, to its memorandum and articles of association as it considers necessary or expedient in consequence of the vesting of shares by virtue of an order under section 8.

(2) The articles of association of a transferred company shall provide that—

(a) the transferred company shall consult with any recognised trade union or staff association concerned for the purposes of negotiations in relation to pay and conditions of service of members of its staff,

(b) the transferred company shall not establish or acquire a subsidiary without the approval of the local authority chief executive,

(c) the aggregate amount standing invested (whether by the purchase of shares or the provision of loans or guarantees of loans) by the transferred company in undertakings (other than subsidiaries) shall not exceed €1,250,000 without the approval of the local authority chief executive.

(3) (a) Subject to paragraph (b), a harbour master may attend formal meetings of directors of the transferred company by whom he or she is employed and may, if the directors, in their discretion, permit him or her to do so, take part in the deliberations by those directors of any matter arising at such a meeting.

(b) The directors of a transferred company may, where they are of the opinion that the attendance by the harbour master at a particular meeting aforesaid or at a part of such a meeting would not be in the best interests of the proper and orderly conduct by them of business at that meeting or the administration of the transferred company’s affairs generally, require the harbour master not to exercise his or her right to attend that meeting or a specified part of that meeting and the harbour master shall comply with such a requirement.

(c) Nothing in this subsection shall be construed as conferring on a harbour master a right to cast a vote in respect of any matter arising at a meeting aforesaid.

14. Restriction on alteration of memorandum or articles of association of transferred company

14. Notwithstanding anything contained in the Companies Act 2014, no alteration made on or from the company transfer day in the memorandum and articles of association of a transferred company or of any subsidiary shall be valid or effectual unless made with the prior approval of the local authority chief executive concerned.

15. Commercial activities outside harbour limits by transferred company

15. (1) Subject to subsection (2), where it appears to a transferred company to be requisite, advantageous or incidental to the performance by it of its other functions under this Act or the Act of 1996 in respect of its harbour, the transferred company may on and from the company transfer day invest in or engage in commercial activities outside the limits of its harbour.

(2) A transferred company shall not engage in a commercial activity to which subsection (1) relates unless it has received the prior approval for such activity from the local authority chief executive concerned.

16. Provisions with respect to sale, leasing and acquisition of land by transferred company

16. (1) (a) A decision by a transferred company to acquire any land or to dispose of any of its land (whether by sale or the grant of a lease) shall only be made by the directors of the transferred company.

(b) Section 183 of the Local Government Act 2001 does not apply to any decision by the directors of a transferred company made under paragraph (a).

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

(3) The rent to be reserved under a lease of land granted by the transferred company shall be of an amount not less than the open market rent obtainable for that land save that a rent of below such an amount may be reserved under such a lease if—

(a) in case any business or trade is to be carried on at the land, the transferred company considers that, having regard to—

(i) the amount of business or trade that is likely to be transacted at the land, or

(ii) the effect the granting of the lease is otherwise likely to have on the amount of business or trade transacted in its harbour,

it is appropriate to reserve a rent at below such an amount, or

(b) in any other case, the local authority chief executive concerned consents to the reservation of a rent at below such an amount.

(4) (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,

the directors of a transferred 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.

(b) Without prejudice to paragraph (a), where a transferred company proposes to acquire land it shall cause a valuation of the land to be made by an appropriately qualified independent person.

(c) In this subsection “State enterprise” means a company (within the meaning of the Companies Act 2014) one or more shares in the shareholding of which is held by a Minister of the Government, or a transferred company, and the principal objects of which (as stated in its memorandum of association) are prescribed in whole or part by statute.

17. Payment of dividends by transferred company

17. (1) All amounts representing dividends or other moneys received by a local authority in respect of shares held by it in the share capital of a transferred company shall be disposed of for the benefit of the local authority in such manner as the elected council may by resolution decide.

(2) This section is without prejudice to any provision of an agreement entered into under section 9.

18. Power to borrow by transferred company

18. (1) A transferred company or a subsidiary may, with the approval of the local authority chief executive concerned, raise or borrow money (including money in a currency other than the currency of the State) including, by means of the issue of debentures (or other debt security) or otherwise.

(2) A transferred company or a subsidiary may borrow money (including money in a currency other than the currency of the State) temporarily but the aggregate standing unrepaid at any time of such borrowings by a transferred company and a subsidiary or either of them shall not exceed such amount as may stand approved for the time being by the local authority chief executive.

(3) The aggregate at any one time of moneys standing borrowed by a transferred company and a subsidiary or either of them under this section shall not exceed the higher of—

(a) such amount, not exceeding €200,000,000, as the Minister for the Environment, Community and Local Government, with the consent of the Minister for Public Expenditure and Reform and the Minister for Finance, after consultation with the Minister, approves with respect to a particular transferred company or subsidiary, or