The Stornoway Port Authority Harbour Revision Order 2019

Made: 28th February 2019

Coming into force: 1st March 2019

The Scottish Ministers (the “Ministers”) make the following Order in exercise of the powers conferred by section 14(1), (2A) and (3) of the Harbours Act 1964 and all other powers enabling Ministers to do so.

In accordance with section 14(1) of that Act, this Order is made in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, for achieving objects specified in schedule 2 of that Act .

In accordance with section 14(2) of that Act—this Order is made following a written application to Ministers by Stornoway Port Authority (“the applicant”) being the authority engaged in improving, maintaining or managing the harbour, and(except in so far as this Order is made for achieving objects mentioned in section 14(2A) of that Act), Ministers are satisfied that the making of this Order is desirable in the interests of securing the improvement, maintenance, or management of the harbour in an efficient and economical manner, facilitating the efficient and economic transport of goods or passengers by sea and the recreational use of sea-going ships.

In accordance with section 14(2) of that Act—

this Order is made following a written application to Ministers by Stornoway Port Authority (“the applicant”) being the authority engaged in improving, maintaining or managing the harbour, and

(except in so far as this Order is made for achieving objects mentioned in section 14(2A) of that Act), Ministers are satisfied that the making of this Order is desirable in the interests of securing the improvement, maintenance, or management of the harbour in an efficient and economical manner, facilitating the efficient and economic transport of goods or passengers by sea and the recreational use of sea-going ships.

In accordance with section 14(2A) of that Act, the objects for achieving which this Order is made include repealing superseded, obsolete or otherwise unnecessary statutory provisions of local application affecting the harbour and consolidating any statutory provisions of local application affecting the harbour.

In accordance with paragraph 4 of schedule 3 of that Act , Ministers have decided that the part of the application relating to works at Newton Marina is a project which falls within Annex II to Council Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and, taking into account the criteria set out in Annex III to that Directive, that the project is a relevant project.

Ministers have decided that the part of the application relating to works at Arnish Deep Water Port is a project which falls within Annex I to that Directive.

In accordance with paragraph 20D of that schedule , Ministers have made a deferral direction because Ministers are satisfied that an assessment of the effects on the environment of the project in question has been, is being, or will be carried out by another consenting authority. Accordingly, the steps referred to in paragraph 20E(1) of that schedule do not require to be carried out.

Notice has been published in accordance with the requirements of paragraph 10 of that schedule. All objections to the application have been withdrawn.

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

PART 1 — PRELIMINARY

Citation and commencement

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• (1) This Order may be cited as the Stornoway Port Authority Harbour Revision Order 2019 and comes into force on the day after the day on which it is made.

• (2) The Stornoway Harbour Order Confirmation Act 1976, the Stornoway Harbour Revision (Constitution) Order 2003, the Stornoway Harbour Revision (Constitution) Order 2008 and this Order may be cited together as the Stornoway Harbour Act and Orders 1976 to 2019.

Interpretation

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• (1) In this Order—

• “the 1976 Act” means the Stornoway Harbour Order Confirmation Act 1976 ,

• “the 2003 Order” means the Stornoway Harbour Revision (Constitution) Order 2003 ,

• “the 2008 Order” means the Stornoway Harbour Revision (Constitution) Order 2008 ,

• “the Authority” means Stornoway Port Authority,

• “Commissioners of Northern Lighthouses” means the general lighthouse authority for Scotland, a body corporate constituted by section 193 and schedule 8 of the Merchant Shipping Act,

• “deposited plans” means the plans, sections and elevations, referred to in article 12 which are bound together, signed and dated with reference to this Order and marked “The Stornoway Port Authority Harbour Revision Order 2019 Plans, Sections and Elevations” copies of which have been deposited at the Scottish Government, Transport Scotland, AMFC Directorate, Victoria Quay, Edinburgh, EH6 6QQ and at the principal office of the Authority, Amity House, Esplanade Quay, Stornoway, HS1 2XS,

• “general direction” means a direction given under article 22,

• “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 harbour of Stornoway as defined by the Act and Orders as comprised within the harbour limits and shall include the works authorised by this Order,

• “harbour limits” means the limits of the harbour as defined in section 8 of the 1976 Act,

• “harbourmaster” means any person appointed as such by the Authority and includes that person's deputies and assistants and any other person for the time being authorised by the Authority to act, either generally or for a specific purpose, in the capacity of harbourmaster,

• “level of high water” means the level of mean high water springs,

• “limits of deviation” means the limits delineated on sheets 3, 7 and 8.

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

• “member” means a member of the Authority holding office either under the 2008 Order or this Order as the case may require,

• “the Merchant Shipping Act” means the Merchant Shipping Act 1995 ,

• “the new constitution date” means 1 May 2019,

• “special direction” means a direction given under article 24,

• “UK Chamber of Shipping” means the trade association for the United Kingdom shipping industry, incorporated under that name as a company limited by guarantee,

• “vessel” means a ship, boat, raft or craft of any description however propelled or moved, and includes a displacement craft, a non-displacement craft, a personal craft, a sea plane on the surface of the water, a hydrofoil vessel or any other amphibious vehicle and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily),

• “works” means the works authorised by this Order, or as the case may require, any part thereof and includes any work constructed under article 12 (power to construct works) or article 16 (subsidiary works).

• (2) In this Order, all areas, directions, distances, lengths, widths and heights as stated in any description of works, powers or lands other than article 14 (power to deviate) shall be construed as if the words “or thereabouts” were inserted after each such area, direction, distance, length, width and height and any reference in a description of works to a point shall be a reference to that point on the deposited plans.

• (3) Any reference in this Order to a work identified by a number is a reference to the work of that number authorised by this Order.

• (4) Any reference in this Order to a numbered sheet is a reference to that numbered sheet in the deposited plans.

PART 2 — CONSTITUTION

Membership of the Authority

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• (1) On and after the new constitution date the Authority shall consist of—

• (a) at least seven but no more than nine persons appointed by the Authority, and

• (b) the Chief Executive of the Authority.

• (2) Members appointed prior to the new constitution date shall retain office as members until the end of their existing term of office and the provisions of this Order will apply to these members from the new constitution date.

• (3) Members appointed under article 5 shall, unless appointed to fill a casual vacancy and subject to the provisions of this Order, hold office for the period of three years from the relevant appointment date.

Applications to the Authority

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• (1) All persons seeking appointment under article 5 shall submit an application form to the Authority by the application date in the year of the appointment date.

• (2) The Authority shall cause the application date and application procedure to be published in a prominent place on the Authority's website.

• (3) The application form shall contain the following information—

• (a) the name and address of the applicant,

• (b) a declaration of interests in such form as may be prescribed by the Authority from time to time containing particulars of all sources of income, business interests, securities held, interest in any land in the vicinity of the harbour and any other matter which might reasonably be conceived as having the potential to lead to a conflict of interest with the duties of a member,

• (c) such other information as the Authority may see fit to require, and

• (d) such biographical information as the applicant sees fit to supply.

Appointment as a member

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• (1) There shall be an appointing body consisting of the following three persons, none of whom shall have made an application under article 4—

• (a) the Chair of the Authority unless the Chair has made an application under article 4, in which case another member nominated by the members, and

• (b) two persons who are not members of the Authority selected by the Chair of the Authority and the Chief Executive of the Authority who are considered by them to be independent of the Authority.

• (2) The appointing body shall meet as soon as practicable after the application date to consider the applications made under article 4.

• (3) The appointing body may interview such of the applicants as it sees fit.

• (4) The appointing body shall decide which persons who have applied under article 4 shall be appointed as members.

• (5) The appointing body shall have regard to the following considerations when making decisions under paragraphs (3) and (4)—

• (a) the special knowledge, experience or ability of applicants to contribute to the efficient, effective and economic discharge by the members of their functions,

• (b) the special knowledge, experience or ability of applicants in one or more of the following matters—

• (i) management of harbours,

• (ii) usage of port facilities,

• (iii) commercial shipping activities,

• (iv) industrial, commercial and financial matters,

• (v) the organisation of employees,

• (vi) the fishing industry,

• (vii) financial management,

• (viii) the law relating to Scotland,

• (ix) safety management,

• (x) commercial marketing,

• (xi) environmental matters affecting harbours,

• (xii) recreational, sporting and leisure activities including, without prejudice to the generality, recreational and competitive boating activities,

• (xiii) civil engineering,

• (xiv) local government, and

• (xv) any other skills and matters considered from time to time by the Authority to be relevant to the discharge of its functions.

• (c) any guidance issued by the Scottish Ministers from time to time with respect to the exercise of such functions.

Persons who may not be members

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• (1) The appointing body may not appoint a person as a member of the Authority if the person—

• (a) has within 5 years of the date on which the appointment would take effect, been sentenced (following conviction for an offence in the United Kingdom, the Channel Islands, the Isle of Man or the Irish Republic) to imprisonment for a period of not less than 3 months, whether suspended or not, without the option of a fine,

• (b) is an undischarged bankrupt,

• (c) with the exception of the Chief Executive of the Authority is an employee of the Authority, or

• (d) has been disqualified under article 8.

• (2) For the purposes of sub-paragraph (1)(b), “undischarged bankrupt” means a person—

• (a) whose estate has been sequestrated and who has not been discharged (or against whom a bankruptcy order has been made and is still in force),

• (b) who has granted a trust deed for, or made a composition or arrangement with, creditors (and has not been discharged in respect of it),

• (c) who is the subject of a bankruptcy restrictions order, or an interim bankruptcy restrictions order, made under the Bankruptcy (Scotland) Act 2016 or the Insolvency Act 1986,

• (d) who is the subject of a bankruptcy restriction undertaking entered into under either of those Acts,

• (e) who has been adjudged bankrupt (and has not been discharged), or

• (f) who is subject to any other kind of order, arrangement or undertaking analogous to those described in paragraphs (a) to (e), anywhere in the world.

• (3) No person shall be capable of acting as a member without having signed and delivered to the Chief Executive of the Authority a declaration in the terms set out in schedule 2 of this Order and a person shall cease to be a member if that declaration has not been made within three months of the date of appointment.

Resignation of members

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A member may resign at any time by giving notice in writing to the Chair of the Authority.

Disqualification of members

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If the Authority is satisfied that a member—

• (a) has without the permission of the Authority been absent from meetings of the Authority for three consecutive meetings,

• (b) has become bankrupt or made an arrangement with his creditors,

• (c) is incapacitated by physical or mental illness from discharging the functions of a member, or

• (d) is otherwise unable or unfit to discharge the functions of a member,

the Authority may declare the office of such a person to be vacant and thereupon the office shall become vacant.

Power to co-opt additional members

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The members referred to in articles 3(1) and 10 may at any time co-opt not more than two persons to serve as a member for such period not exceeding twelve months as the Authority may specify at the time of co-option.

Casual vacancies

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• (1) A casual vacancy shall arise in the event of the death, disqualification, or vacation of office by a member, before the end of that member's term of office as specified in accordance with article 3 (or as the case may be article 9), or the failure of a member to make a declaration under article 6.

• (2) A casual vacancy arising in the office of a member shall be filled by the appointment of a suitable person in terms of articles 5(5) and 6 by the other members.

• (3) A member appointed to fill a casual vacancy under this article shall hold office (unless that person previously dies or otherwise ceases to be a member) during the remainder of the term for which the member in whose place that person was appointed, would, in ordinary course, have continued in office.

Incidental provisions relating to the Authority

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On and after the new constitution date, the provisions of schedule 1 of this Order shall have effect with respect to the Authority.

PART 3 — WORKS

Power to construct works

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The Authority may in the lines and situations and within the limits of deviation and according to the levels shown on the deposited plans and sections construct and maintain the following works—

• Work No. 1 - Newton Marina - The reclamation and infilling of an area comprising 20,500 square metres of the seabed and foreshore at Newton Basin and the levelling of that area to form a platform to accommodate boat storage, a boatyard building, boat sheds, and support facilities buildings, and parking areas for the proposed marina, having a concrete retaining wall or rock armoured revetted slope on its northern perimeter, and rock armoured revetted slopes on its western and eastern perimeters, the location of which is shown on sheet 3, with the limits of deviation shown in red, and sections of which are shown on sheet 4.

• Work No. 2 – Newton Marina - A rubble mound breakwater 75 metres long and 20 metres wide at its base, with rock armoured revetted slopes, to provide shelter for the proposed marina, the location of which is shown on sheet 3, with the limits of deviation shown in green, and sections of which are shown on sheet 4.

• Work No. 3 – Newton Marina - A concrete-surfaced slipway 50 metres long and varying in width at its base from 10 metres to 23 metres, with rock armoured revetted slopes on its sides, for the launching and recovery of small boats from trailers, the location of which is shown on sheet 3, with the limits of deviation shown in yellow, and sections of which are shown on sheet 5.

• Work No. 4 – Newton Marina - A pontoon facility comprising floating pontoons, configured to provide a main walkway, and three berthing walkways, each with finger and walkway pontoons, restrained in place by steel cantilever piles driven into the bed of the harbour, and including an access bridge connecting to the shore, the location of which is shown on sheet 3, with the limits of deviation shown in blue, and a section of which is shown on sheet 5.

• Work No. 5 – Newton Marina - A boat hoist support structure, comprising two steel beams 37 metres long 0.7 metres deep and 1.2 metres wide supported on 12 steel bearing piles 508 millimetres in diameter, driven into the bed of the harbour, and protected on its east side by a pontoon fender, to allow the recovery and launching of vessels up to 80 tonnes in weight, the location of which is shown on sheet 3, with the limits of deviation shown in pink, and sections of which are shown on sheet 5.