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2011
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.
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 by 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.
Process (Schedule 3 of the Act)
Pre-application consultation
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
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 Scottish Natural Heritage, Scottish Environmental Protection Agency 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 SNH, 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.
Draft orders
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 the 1964 Act. This will assist us in understanding the applicant’s purpose and requirements.
Applicants should seek their own legal advice prior to submitting a draft as we cannot provide such advice.
Formal applications
All application drafts should be accompanied by purpose and effect notes if not already provided during informal discussions. 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.
Six hard copies of the order and any maps/plansand also an electronic copy of all application documents should be included with the application, along with the appropriate fee. 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. 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.
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:
Advertisement
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:-
In addition, we will provide information on suitable text to advise any objectors or people making representations how their responses will be handled for Data Protection purposes.
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.
Consultation
Scottish Ministers may direct that copies of the draft order are served on person 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:-
And if the applicant is not the harbour authority they must also serve a copy on that authority. Proof of service will be required.
Where no works are to be authorised by the order the bodies to be served would normally exclude SNH and SEPA but in each case the applicant will be formally advised on the persons to be served.
Objections and representations
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. 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 further.
If matters are not resolved and the objection withdrawn Scottish Ministers will determine how any outstanding objections are to be handled.
This may include further written representation by both parties, a hearing or full public local inquiry depending on the circumstances.
Objection handling
Where objections are not withdrawn, 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.
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 general planning inquiries.
Modifications to applications
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).
Decision
In making the decision on whether or not to make the order or to make it with modifications Ministers will consider:-
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 same publications 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 come into force until approved by resolution of the Parliament.
Other Consents
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).
It may also be possible to carry out screening opinions for the overall project and agree the required content of a single EIA that can be used to apply to each consenting authority. Applicants are asked to advise Transport Scotland at an early stage if they feel this approach would be of benefit to them.
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 5022 or email us at val.ferguson@transportscotland
Annex A
APPLICATION CHECKLIST
6 hard copies of draft order and any maps or plans, which should have been subject to pre-application discussion.
ecopy of the draft in word format
ecopy of maps/plans
one hard copy of Environmental Statement (ES) and any supporting documents if screened as required
ecopy of ES and supporting documents (on CD)
purpose and effect notes covering all provisions in the draft order explaining why they are sought and the purpose of each
application letter confirming:-
relevant fee (cheques payable to Transport Scotland)
Annex B
HARBOUR ORDER PROCESS CHART
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